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.