Getting guardianship over a parent It is my understanding that just because an older person does things that are not wise, does not give the right of an adult child to impose guardianship on them. It is my understanding that if they are a danger to themselves or others than a guardian can be imposed. If a mother has only one adult child but she believes that she has two adult children (without any facts to support this belief) and then she complains to the other adult child she cannot find the missing son, then is that sufficient to get a court to appoint a guardian? Assume that she does this over and over again for a long time. Would that be sufficient for a court to impose a guardian?
Would that be sufficient for a court to impose a guardian? Maybe, maybe not, it depends whether the procedures at N.J. Ct. R. 4:86 are followed and complied with, especially Rule 4:86-2(b)(2) which includes a requirement for: Affidavits or certifications of two physicians having qualifications set forth in N.J.S.A. 30:4-27.2t, or the affidavit or certification of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2, in such form as promulgated by the Administrative Director of the Courts. Pursuant to N.J.S.A. 3B:12-24.1(d) [...] To support the complaint, each affiant shall state: [...] (F) the affiant's opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person's condition [...]
There is no requirement that a will, or a trust created by a will, be "fair". The will could have left $500,000 in trust for one set of siblings, and $5,000 to another set. It could specifically exclude one beneficiary from some of the benefits, or specify an unequal division. That is all the choice of the testator. As described in the question, the trust does seem likely to give greater benefits to one set of children than to their cousins. Unless there are grounds to upset the will, that is just how it is. However, the wide "absolute" discretion granted to the trustee might allow the trustee to modify this outcome, but the trustee is not allowed to simply rewrite the trust. How much the payments can be varied will depend on the exact terms of the trust. It does sound as if this trust was not worded as carefully as it might be, since it does not specify a ration when the trust is to be split. The designated relative can decline to serve as trustee, then any specified alternate would serve, or if there is none, or none who will serve, the court would appoint a trustee.
tl;dr Spouse before adult child. Patient’s designated surrogate, and court appointed guardian, before both. Assuming your mom does not have an advanced directive or has not designated a proxy, then her husband would come before you. He can ask whoever he wants and in fact he should get the information he can to determine what she would want. The standard is what the decision maker believes the patient would want, not necessarily what the decision maker wants. For example, if the patient has for as long as anyone can remember said repeatedly “I’m not dying hooked up to machines- when the time comes, let me go.” And the next of kin is of the “try whatever is possible to try” mindset, they should still go with what they believe the patient wants. This can be very hard in real life. In Florida, the decision to withhold (e.g. DNR) or withdraw must be with evidence that that is what the patient would want or is in her best interests. You may recall this coming up in the Terry Schiavo case- husband (who was also court appointed guardian) takes precedence over parents, but parents challenged his decision in court. Florida law laws out the order: 765.401 The proxy.— (1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act: (a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection; (b) The patient’s spouse; (c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation; (d) A parent of the patient; (e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation; (f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or (g) A close friend of the patient. (h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider’s bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient’s care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility’s bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record. (2) Any health care decision made under this part must be based on the proxy’s informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. (3) Before exercising the incapacitated patient’s rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest.
Late to the party, but I'll answer anyways. In general, providers have a lot of wiggle room when sharing information with parents, on condition that the patient hasn't explicitly objected despite having opportunity to do so. HIPAA allows the provider to make a judgment call on whether such information can be shared without explicit consent: Quoting Title 45 § 164.510 : (i) Obtains the individual's agreement; (ii) Provides the individual with the opportunity to object to the disclosure, and the individual does not express an objection; or (iii) Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure. HHS does discuss disclosure to family members in their FAQ : A covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object. A parent of a child who has just turned 18 is likely still somewhat involved in the child's care, so, absent either an objection or a reason to believe the child would object if asked, sharing is probably not a violation.
Do I have to pay child support if we are just dating and not married? We are not planning on having a child, but what if by some odd chance she gets pregnant? Does it depend on where I live? Like Toronto? The Modern Rule In Most Developed Countries It does depend upon where you live. No jurisdiction of which I am aware has ever distinguished between a planned child and an unplanned pregnancy in making a child support award. The vast majority of countries that have a category of obligation called "child support" apply it without regard to whether the parents are married. This would include all jurisdictions in Canada and the United States. But, in those jurisdictions, liability for child support in the case of an unmarried couple requires a mother seeking child support from a father, to establish the father's paternity by any of a variety of means, within the time allowed by law. Given the availability of cheap and highly reliable DNA tests to establish paternity, this step is now almost trivial and often waived by fathers who simply admit paternity instead when paternity seems clear. In contrast, paternity is presumed rather than something that has to be proved in cases involving a married couple. There is an exception to this general rule in most jurisdictions that have child support at all. This is because the husband of a married woman who has a child is presumed to be the father. Therefore, a man who is the biological father of the married woman's child is only obligated to pay child support if the father's paternity is established within the time allowed by law by the husband, the mother of the child, or a third-party on behalf of the child with standing to do so. Also, in most jurisdictions that have a concept of child support payments, a termination of parental rights (generally for abuse or neglect, but also in connection with a legal adoption by someone else) also terminates obligations to pay child support payments that arise after parental rights are terminated, although this rule is not universal. Generally that exception would not apply in the fact pattern that you describe. Historical and Comparative Context Historically, the concept of child support was unknown, illegitimate children and their mothers had no rights with respect to their fathers (and fathers had no rights with respect to their illegitimate children in most circumstances), and only married people were entitled to post-divorce support from an ex-spouse that was known as alimony and alimony served to provide support to both the ex-spouse and their children. The harshness of this historical rule was mitigated somewhat by the concept of common law marriage that had the practical effect of declaring an unmarried man who caused an unmarried woman to become pregnant to be declared husband and wife despite not having actually having gone through a marriage ceremony in many cases. At that time, there was an incentive for the man to re-characterize the nature of the relationship retroactively, because if the woman was not a prostitute, it would often be a crime or tort for the man to have had sex with the unmarried woman, enforceable by the state or by her father or guardian. But, if the couple were deemed to have been common law married, then all of these sanctions could be avoided. At this time, in areas where the state was not powerful enough to enforce these kinds of sanctions for premarital sex giving rise to a pregnancy, social pressure and sometimes even a literal "shotgun" marriage would be used to force the father to marry to mother. Prior to the 19th century in Western predominantly Christian countries, the only way to get a divorce was by special legislation in which the legislature passed a law specifically ending a particular couple's marriage. In the 19th century, bit by bit, Western countries started to allow judicially decreed divorces under a general statute on a proof of fault basis, with alimony awarded to the not at fault spouse under a breach of contract damages styled analysis that did not involve a separate child support component. Bit by bit in various Western jurisdictions during the 20th century, child support began to be recognized as a separate obligation from alimony and property division in a divorce, as partnership theories of family law, and parent-child relationship based theories of family law, began to replace the contract based theories of family law in earlier divorce actions. Non-marital relationship entitlements to child support also arose around the same time. Many U.S. states have both civil and criminal penalties for failing to provide financial support to your child. Japan only recognized child support as a separate type of relief in family law in the late 20th century (multiple decades after World War II), and has never had post-dissolution of marriage alimony after a divorce, although it has had temporary support not clearly distinguished between alimony and child support, during the pendency of divorce proceedings (which tend to be much shorter than in the U.S. and Canada). The primary relief to a spouse upon a divorce in Japan historically was property division and complete allocation of each child to one parent or the other, with no child support or alimony post-decree, until these late 20th century reforms allowing for limited child support payments (which are still rarely actually received even when ordered by a court) were adopted. The analysis in countries where the parents of the child are subject to Islamic rules of family law are beyond my competence, but quite different. Unlike Western jurisdictions, Islam has recognized non-legislative divorce since its inception in the early 600s CE as did prior pagan communities in places where Islam arose. One of the main reasons that child support and alimony were rare or non-existent at the time in almost all countries was that the legal systems and economic systems in existence at the time made intangible monetary obligations to pay child support in regular installments over a long period of time, and to enforce custody arrangements, was effectively impossible for former spouses to enforce in all but a very small fraction of cases.
This person is appointed by the court to look after the child's interests recognizing that the child's interests may be different from those of the parents. As @phoog notes in the comments: the attorney ad litem is not your lawyer. The question suggests that you might not understand this (you mention &quot;our&quot; attorney ad litem). The job of the attorney ad litem is to represent your daughter's interests, which might not align with yours. This is why you need your own lawyer. The attorney ad litem might be skeptical of you and your submissions to the court; that's her job. It doesn't necessarily mean that she is biased against you. If her skepticism is well founded, an attempt to have her replaced may work against you. (FYI, most jurisdictions call this person a &quot;guardian ad litem&quot; or GAL, but Arkansas uses atypical terminology.) Our attorney ad litem appointed for our 2 year old daughter is extremely biased against me. This is not a reason to remove the person appointed. It is their job to distrust parents and provide an independent opinion to the court. There could be grounds for removing a guardian ad litem (e.g. a personal relationship with one of the parties prior to the litigation), but nothing in this question suggests that any relevant facts are present. You would be much better served trying to figure out what causes the guardian ad litem to distrust you and to find a way to show that person that their distrust of you is ill-founded.
This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.
Under the Dutch Civil Code article 1:245, "All minor children are subject to authority". Article 1:247 says that "Parental authority comprises the duty and right of the parent to care for and raise his minor child". This basically means that parents have the right to exercise authority over their children (until age 18). Art. 1:249 says that: A minor child must observe the rights and powers that are granted to his parent or guardian in connection with the exercise of authority and he must take into account the interests of the other members of the family of which he forms a part. There are some exceptions, under Art. 1:246, people who cannot exercise authority over a minor: ...minors, adults who are placed under guardianship and persons whose mental abilities are so disturbed that they are unable to exercise such authority, unless the disturbance is temporary. As for the latter, that is a determination that would have to be made by the court. Death and divorce of parents add complications. There is also subsection 1.14.2.2a, about emancipation of an underage mother, where a mother 16 or older can request emancipation ...to care for and raise her child under the right to exercise authority over it and then The Juvenile Court may award the request only if it thinks this is in the best interests of the mother and her child. If another person was charged with exercising authority over the child, then the emancipation of the underage mother has the result that she as of then shall exercise this authority exclusively. Under §1.14.4, the court can also order custodial control of a minor If the moral or mental developments of a minor or his health are seriously endangered and other measures to avert this danger have failed But such control is given to a Foundation under Art. 1(f) of the Youth Care Act (not an SO). Under Art. 1:266 Provided that this is not contradictory to the interests of the children, the District Court may remove a parent from the right to exercise authority over one or more of his children on the ground that this parent is unfit or unable to comply with his duty to care for and raise his children. Art 1:269 is more specific about grounds for depriving parental authority. Insofar as they have apparently denied your request under §1.14.4, that is about as far as one can go.