What is a Guardianship? Do you need one for mom or dad?
I. WHAT IS A GUARDIANSHIP?
A. Basic Definition A guardianship is a Court supervised procedure where the Court gives one person the legal authority to make personal or financial decisions for a person who can no longer make such decisions for himself or herself.
B. Incapacitated Person A person for whom a guardianship is necessary is known as an “incapacitated person” (“IP”) which is defined in TPC 601(14) to mean a minor or an adult individual who, because of a physical or mental condition and is substantially unable to provide food, clothing or shelter for himself or herself; or to care for the individual’s own physical health; or to manage the individual’s own financial affairs.
C. Policy – Purpose of Guardianship Unless a Court determines that a guardian with full authority over an IP is necessary, the Court should limit the authority of the guardian so that it is the least restrictive authority possible. Section 602 of the TPC provides that a court may appoint a guardian with full authority over an IP; or a court may appoint a guardian with limited authority over an IP: as indicated by the incapacitated person’s actual mental or physical limitations, and only as necessary to promote and protect the well-being of the person. Except for minors, the Court may not use age as the sole factor in determining whether to appoint a guardian for the person. In creating a guardianship that gives a guardian limited power or authority over an IP, the Court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person.
D. Guardian A guardian is the person who accepts the Court’s appointment to be responsible for making decisions for the IP. A guardian has only those powers specified in the Order Appointing Guardian. Generally, two types of guardians exist:
1. Guardian of the Person – A guardian of the person has the right to have physical possession of the IP and to establish the IP’s legal domicile; duty of care, control and protection of the IP; duty to provide the IP with clothing, food, medical care and shelter; and power to consent to medical, psychiatric, and surgical treatment other than the in-patient psychiatric commitment of the IP.
2. Guardian of the Estate – A guardian of the estate of the IP has the following powers and duties to possess and manage all property of the IP; to collect all debts, rentals or claims that are due to the IP; to enforce all obligations in favor of the IP; and to bring and defend suits by and against the IP.
II. WHEN IS A GUARDIANSHIP NECESSARY?
A. Common Situations mental retardation, Alzheimer’s dementia, multi-infarct dementia, Down’s syndrome, Parkinson’s disease, closed head injuries, chronic mental illness, excessive short term memory loss.
B. Guardianship Not Used treatable mental illness, drug addiction, alcoholism, homelessness, spendthrifts, persons receiving only social security benefits (no Guardian of the Estate is necessary).
C. Less Restrictive Alternatives Court Investigators are to investigate the circumstances of each application to determine if a less restrictive alternative to guardianship is available. In counties without a Court Investigator, the attorney ad litem for the IP should examine these alternatives. A list of some of the most common Less Restrictive Alternatives is attached to this paper.
III. HOW DOES ONE GET A GUARDIANSHIP STARTED?
A. Courts Statutory Probate Courts, County Courts at Law and County Courts (in that order) have jurisdiction of guardianship cases.
B. Attorneys Most Courts will allow only attorneys to file a guardianship application. In an ideal situation, a concerned family member will contact an attorney to file an application to be appointed as guardian of an IP.
C. Court Initiated Guardianships The Texas Probate Code provides that “if a Court has probable cause to believe that a person domiciled or found in the county in which the Court is located is an incapacitated person, and the person does not have a guardian in this state, the Court shall appoint a guardian ad litem or a court investigator to investigate and file an application for the appointment of a guardian of the person or estate, or both, of the person believed to be incapacitated.”
In Tarrant County, the Courts require an information letter and a doctor’s letter to establish probable cause. If the IP’s incapacity is mental retardation, the Court must be provided with a Determination of Mental Retardation or “DMR” pursuant to §687(c) of the Texas Probate Code. This section states that if the basis of the Proposed Ward’s incapacity is mental retardation a physician or psychologist shall conduct an examination according to the rules adopted by the Texas Department of Mental Health and Mental Retardation and shall submit written findings and recommendations to the Court. This report must be based upon an examination conducted not earlier than twenty-four months before the date of a hearing to appoint a guardian for the proposed ward. Unless the IP is in imminent danger, Court Initiated Guardianships take at least 4 to 6 weeks from the date the Court receives the proper letters.
D. Social Worker Involvement
1. Adult Protective Services If there is concern that an adult is being abused, exploited or neglected, Adult Protect Services should be called (1-800-252-5400). APS sends a worker to investigate. If APS believes a guardianship is necessary, the worker will take a doctor to examine the IP. If no emergency action is necessary, APS should make a referral to the Texas Department of Aging and Disability Services for a guardianship investigation.
2. Nursing Home and Hospital Social Workers Social Workers at nursing homes and at hospitals have also used the court initiated guardianship procedure to begin the guardianship process for clients or patients who are IP. Hospital discharge planners should determine if the patient is an IP as soon as possible since the procedure may take a while. Stating that the IP will be in imminent danger when discharged is not considered imminent danger by most courts.
E. Guardian Appointment Process
1. Application for Guardianship is filed by a private attorney, guardian ad litem or court investigator. Only attorneys can file applications.
2. The Sheriff or Constable personally serves the IP with a copy of the Application.
3. The Court appoints an Attorney Ad Litem to represent and advocate for the IP.
4. The known relatives of the IP must receive statutory notice of the application.
5. Unless the application is for the appointment of a temporary guardian, the guardianship cannot be established until the Monday following ten days from the date the IP is personally served.
6. The Attorney ad litem must personally visit the IP and determine if the IP wants to contest the guardianship.
7. The applicant’s attorney must file a doctor’s letter with the court which states that the IP is incapacitated and generally describes the nature of the incapacity.
8. A hearing date is set with the Court. The IP must attend the hearing unless the Court determines that it is not in the best interests of the IP to attend.
9. The Judge or jury hears testimony and decides if a guardianship is necessary, what powers the guardian should have, how the IP’s rights should be limited and whether the person seeking to be appointed guardian is suitable.
10. The Judge then signs an Order Appointing Guardian. The Guardian must file an Oath and Bond in order to qualify. The Clerk then issues Letters of Guardianship to the guardian.
IV. WHO WILL SERVE AS GUARDIAN?
Statutory Priority Texas Probate Code, Section 677 provides a legal priority as follows:
1. a person selected by IP on a declaration of guardian;
2. IP’s spouse;
3. nearest of kin;
4. any suitable person.
V. GUARDIANSHIP MONITORING
A. Annual Reports A guardian of the person is required to file a guardian of the person report each year concerning the IP’s mental and physical condition and stating any change of the IP’s or guardian’s residence. A guardian of the estate is required to file an annual account stating all receipts, disbursements, cash on hand, and assets being administrated. Failure to file either of these reports may lead to fines and/or removal.
B. Court Visitor Program Each statutory probate court is required to establish a Court Visitor Program. As a part of this program a volunteer makes an annual visit on each IP who is the subject of a guardianship. The Court Visitor personally visits the IP and the guardian and reports his or her findings and conclusions to the Court concerning the IP’s social and intellectual functioning as well as living conditions. If the Court Visitor recommends an increase or decrease in the guardian’s powers or removal of the guardian or guardianship, the Court will appoint a Court Investigator or Guardian ad litem to investigate, and, if necessary, to file a petition to modify the guardianship order or to remove the guardian or guardianship.
C. Annual Determination Each Court is required to make an annual review and determination of whether a guardianship should be continued, modified or terminated. In making this annual determination, the Court reviews the Court Visitor report and the guardian of the person report.
8 thoughts on “What is a Guardianship? Do you need one for mom or dad?”
January 25, 2013 at 3:29 am
My mother has terminal liver cancer. Plus dementia brought on by the disease. I and my sister care for her. One small mortgage 10k. Which I have been paying for. What would be recommended to protect the home. Against probate, lien and ta x benifits. I was told a LBS would not apply cause of her dementia. What do I do?
January 31, 2013 at 7:57 pm
If your mother has dementia, then a Lady Bird deed would not work because she would lack the capacity to sign such a deed. However, there are other ways that estate planning could be done for her, especially if she has named a power of attorney. Please contact me directly for a more detailed discussion!
March 20, 2013 at 3:25 am
My son has life long (chronic) mental illness. He is also learning disabled. He is not low normal IQ, academically 3rd grade. He was declared incapacitated at age 18 in El Paso County and I was made his Guardian. We have moved to Dallas County and are in the process of transferring the Guardianship to this county. Now the Court Investigator has stated that she believes he doesn’t need a Guardian. She is to meet with my son and myself TOMORROW. In El Paso, the court assigned an Attorney for me. I can’t find where El Paso does the same thing. I’m fearful of this meeting tomorrow and this Investigator telling me she fears my son’s “human rights” are being violated. What recourse do I have? And of course, money is an issue
March 20, 2013 at 4:45 pm
I am sorry you are having trouble! Dallas County court investigators are reasonable people and they just want to be sure that your son actually needs a guardian. If he has a mental illness, he doesn’t have to have a guardian. However, if he also has mental retardation then there are grounds for a guardianship. Good luck!
August 13, 2013 at 8:31 am
My father has been diagnosed with dementia and also has frontal lobe damage from a childhood injury. He had extensive testing last year and has almost no Executive Functioning skill. He is an aggressive individual who bullies his way to maintain control over my mother. She is in a rehabilitation facility and has serious health issues. I was visiting her with a friend this past weekend and my dad was present. When I left the room for about five minutes, my father began telling my mother how her last hospital visit COST HIM $90,000 and giving her a difficult time. This upset her greatly and she became teary.
We left shortly after I returned to the room. I found out what had transpired when we got to his car. I called my mom and told her that what my father was irate about, was a document the hospital sent to medicare, and Dad did not understand what he was looking at. He has been concerned about this with me in a discussion the previous day. I tried to explain to him that they were not responsible for this bill and it was just “numbers”. They met their deductible previously this year but he could not understand that. She was immediately relieved. My younger brother does their finances and Dad happened to see the statement to Medicare when he was discussing other matters with my brother. My friend who witnessed the verbal abuse called my father a horrible bully.
My father is living with my older brother and his girlfriend right now, moving from a very nice but expensive senior living facility. My older brother is an alcoholic and can be verbally abusive to my father, and my father has voiced some fear, but in general, they are allies and my older brother abuses both his siblings. He has threatened to blow up my younger brother’s house in front of myself and a private geriatric social worker and made other similar threats to me. He has recently moved “home” (back in the area) from Montana after almost 40 years, I believe to claim his birth right, and is maneuvering to take control of the family assets. My father has now switched Power of Attorney from my mother to my older brother, at my older brother’s request.
My mother has been an antique dealer for 35 years and for the last seven years I have been helping her in the business doing antique shows. We put all the business assets into an Irrevocable Business Trust and I am the Trustee to try to protect my Dad from destroying the antiques. He can not comprehend their value or that they are delicate. Many of the items are still stored in their once beautiful home that is now a mess and my older brother has denied me access to the home or antiques telling my father that I am trying to take his 50%. I know I have a right to legal access but not without it becoming very ugly, (since my older brother wants it all) so I have done nothing. About half of the items I have stored in two U-Haul type lockers where they are temperature controlled.
My big problem is my mother. The nurses are telling me that my mother is miserable when my father is present and voices her frustration to them. At the same time, she does love my Dad and does want to see him. He is still driving, even though the DPS and Texas State Medical Board made a recommendation to the Justice of the Peace that his license be revoked. My father appealed the Medical Board request, and my older brother testified in his behalf. My dad uses driving as an escape mechanism and believes that his life would be over if he couldn’t drive, even though he has totaled and damaged several cars. The JP had no documentation of his medical condition, due to HIPPA regulations, not seeing what the State Medical Board had reviewed.
My Dad visits my mom every day and depending on his mood, he will be happy with her or make her miserable. He is lacks complete understanding to her emotional needs as well as ours.
Dealing with the dynamic of my father and older brother, how do we protect my mother’s well being and happiness? Her attitude affects her ability to recover and when he is sweet she is happy. It is impossible to police his day-to-day attitude and what he says to her. This is becoming exhausting.
December 16, 2013 at 9:59 pm
I suggest you contact a probate attorney in your area who can assess your complex situtation. Good luck!
February 26, 2014 at 8:35 am
My father was just served with an Application for Guardianship. This was served my his wife, yet his Declaration of Guardianship indicates he if he is to ever be placed under guardianship, he wants that to be one of his children and as explicitly states he does not want his wife to fill that role. Additionally, there is substantial misbehavior in her background that suggests that she would not be a suitable guardian.
As one of her claims is that his Parkinson’s condition has rendered him with “severe mental disability”, and in support of our objection to this application, his children are searching for a physician or psychologist to conduct an examination to submit to the Court.
Is there someplace to obtain a recommendation or referral for this type of service?
February 28, 2014 at 9:27 pm
Your father should hire an attorney to assist him with this matter! If the attorney does elderly law, they will have a suggestion for a doctor to conduct the examination. The attorney could also file the Declaration of Guardianship with the court.