Due Process Rights in Guardianship Proceedings

Senior Law News | Apr 1, 2019 | Shannon Laymon-Pecoraro

The 14th Amendment of the Constitution of the United States of America provides the right to due process attaches to anyone who is threatened with loss of liberty or property. In guardianship proceedings, an individual that is found to be incapacitated may lose all of his rights and property. The respondent in a guardianship may lose such things as his right to vote, the ability determine where he will live, and be denied access to his property. The loss of such rights is a deprivation of liberty and property for which a court is required to ensure due process protections are afforded.

Pursuant to Virginia Code § 64.2-2003, a guardian ad litem, a licensed attorney who has been vested with a number of statutory responsibilities and duties, must be appointed by a court in every guardianship matter. The guardian ad litem represents only the “interests” of the Respondent, and not the Respondent himself. In essence, the guardian ad litem serves as the eyes and ears of the court by investigating the case and making a recommendation. Such recommendation may, however, wholly ignore the respondent’s wishes, thus depriving the respondent of the due-process protections afforded to him. As a result, the respondent has a right to choose independent counsel to serve as an advocate during the course of the guardianship proceeding.

Additionally, Virginia Code § 64.2-2007 expressly provides a respondent with the right to request a jury trial and the ability to, “compel the attendance of witnesses, present evidence on his own behalf, and confront and cross-examine witnesses.” The right to a jury is often viewed as to application of the citizens’ perspective to the law. This right, combined with the other rights afforded to a litigant, help ensure that a respondent is afforded the right to defend against an accusation of incapacity and that there is a fair process.

Ask Kit Kat: Lucky Calf

Hook Law Center: Kit Kat, what can you tell us about a young calf that got loose in New York City?

Kit Kat: Well, this is the craziest story! Did you know that New York City has approximately 80 slaughterhouses? Neither did I, until I read an article in The New York Times about it. So, on March 19, 2019, one little, darling male calf managed to escape from the conveyance which brought him, and he was trotting along the Major Deegan Expressway near Yankee Stadium in the Bronx. He had a tag in his ear, and clearly looked bound for a slaughterhouse. The NYC police sought assistance, and they had the calf tranquilized. He was then transported to an Animal Care Centers facility in Harlem. Animal Care Centers are a nonprofit which provides animal control services across the city. Someone with a sense of humor dubbed the little calf, which was under a year old, Major Deegan, after the expressway where he had been found.

Major Deegan is not the first animal to have escaped the fate of being sent to a slaughterhouse. Already this year, Katy Hansen of the Police Department says, a lamb and two goats have appeared on city streets. In the case of one of the goats, someone had taken it to a slaughterhouse as a way to get rid of the animal. Fortunately for the goat, it was rejected, and the person who brought it there, apparently just let it fend for itself.  In all of 2018, there were only three goats, seven pigs, and one sheep taken into custody after being found wandering aimlessly, so Ms. Hansen is not sure why there is a sudden spike in farm animals being abandoned.

Major Deegan, like the goat and lamb that had been recently found, were then sent to Skyland Sanctuary in Wantage, NJ, where they could have a more natural setting. The other goat was sent to the Farm Sanctuary in Watkins Glen, NY. These creatures sure got lucky! (Liam Stack,  “Slaughter-Bound Calf Escapes on Expressway, Earning New Name and a Life of Leisure,” The New York Times, March 19, 2019)

Shannon Laymon-Pecoraro

Attorney, Shareholder, CELA
757-399-7506 | 252-722-2890
[email protected]

Shannon Laymon-Pecoraro is a Shareholder of Hook Law practicing in the areas of elder law, special needs planning, estate and trust administration, estate planning, asset protection planning, financial planning, guardianships, and conservatorships. Ms. Laymon-Pecoraro also works with plaintiffs who have been injured, and their trusted advisors, to advise on public benefits issues and developing trusts to protect settlements and verdicts. To date, she has completed over 250 personal-injury related trusts, specifically Settlement Protection Trusts and Special Needs Trusts, including those with Medicare Set-Asides.

Ms. Laymon-Pecoraro is certified as an Elder Law Attorney (CELA) by The National Elder Law Foundation (NELF). Approved by the American Bar Association and authorized by the Pennsylvania Supreme Court, the CELA certification is the legal industry’s “gold standard” for elder law and special needs practitioners. There are only about 500 CELA-certified attorneys nationwide.

Prior to joining the firm in 2012, Ms. Laymon-Pecoraro handled estate planning documents for members of the United States Department of the Army and has been involved in the legal representation of several large corporations.

Practice Areas

  • Elder Law
  • Estate & Trust Administration
  • Estate Planning
  • Asset Protection Planning
  • Guardianship & Conservatorship
  • Long-Term Care Planning
  • Special Needs Planning
  • Financial Planning
  • Personal Injury Settlement Consulting

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