A Few Practical Thoughts on Guardianships for the Aging

As life expectancies continue to increase across the globe, more people are having to confront the trying task of caring for their loved ones who are no longer able to care for themselves. While it may be easy enough to cook someone a homemade meal or help out with some chores around the house, some jobs require legal intervention to accomplish.

Keeping up with one’s financial responsibilities, making important healthcare decisions, and even basic hygiene may be impossible for those who lack the capacity to do so. In these situations, one viable option that Texas law has made available to family and friends is a guardianship. When someone is appointed as a guardian of another person (called the ward), a Texas court gives that guardian the legal authority to make important decisions that the ward is unable to make for themselves. Although a guardianship can be a great way for people to take care of their loved ones during times of need, it can often prove a complex legal proceeding that requires knowledge and patience.

Here are a few practical thoughts for anyone considering a potential guardianship.

  1. Avoid it Altogether.

Life is unpredictable, and it is near impossible to know just when somebody’s mind or body will give out on them. That is why it is extremely important to have a game plan in place before one’s health takes a turn for the worse. I know it can be difficult to face the reality of death, but ignoring it will not only create hardships for one’s friends and family, but also potentially endanger one’s own life. Many tears and headaches can be saved with some quick and easy estate planning tools.

Things like powers of attorney (medical and durable), advanced directives to physicians, and a will make sure that your wishes are always followed, even if you cannot always voice them. By taking a little time to visit with an attorney and execute these documents, you can ensure that you will be taken care of according to your wishes. You will also assure your family that they will have the tools necessary to care for their loved one if and when the time arises.

  1. A Guardianship Will Not Be a Secret.

When it is simply too late for your loved one to execute estate planning documents, it is time to consider a guardianship. Too often I hear people ask, “Can we keep this quiet? I don’t want the family to worry.” The answer is usually a resounding “NO”. The Texas Estates Code specifically mandates that a proposed ward’s parents and/or spouse must be personally served citation of an application for guardianship. Furthermore, a proposed ward’s children and/or siblings must be notified of the proceeding by certified mail, return receipt requested. In addition to family members, the court will typically require the local Sheriff of the county in which the guardianship application is filed to post a public citation, which is typically done at the county courthouse.

Lastly, the proposed ward his or herself must be personally served with citation and a copy of the application to appoint a guardian over him or her. The bottom line is that a court will not take action in a guardianship case until it knows all relevant parties have notice of the proceeding and have a chance to intervene if they so choose. While this may seem like a holdup in what should be a quick and easy process, the notice requirements serve the important goal of providing due process to all. They ensure that everyone close to the proposed ward gets a fair chance to take part in the guardianship process.

  1. Multiple Guardians are Usually Not a Good Idea.

It is quite common for the children of a proposed ward to inquire about a guardianship for an ailing parent together. When asked who they wish to be named the guardian, the reply is often “both of us” or “all of us jointly.” At first glance, it may seem sensible to appoint two siblings jointly to make decisions for their incapacitated parent. Texas Courts have chosen to shy away from this option, however, deciding that in the case of guardianships, two heads are not better than one. The Estates Code generally mandates that only one person will be appointed guardian of the person or estate.

The only instances when a court may be inclined to appoint more than one guardian are when the two proposed guardians are 1) a husband and wife; 2) joint managing conservators; 3) coguardians duly appointed in another jurisdiction, or 4) both parents of an adult. In other words, a court will not be more inclined to name two or more guardians just because they are the proposed ward’s siblings or children.

While it may seem unfair to eliminate some of the ward’s family from important life decisions, having more than one guardian means the potential for disagreement, gridlock, and inability to reach consensus in a timely fashion. These situations could wreak havoc on a ward and his or her family. By naming only one guardian, a court is attempting to give the most qualified individual the ability to make sensible decisions on behalf of the ward in an efficient, timely manner.

  1. Incapacity is Not a “Gut Call.”

When weighing a potential guardianship, the term with the most legal sway is usually “incapacity”. In order for a court to appoint a guardian, it must first find that the proposed ward lacks some sort of capacity, or is incapacitated. When asked why a loved one lacks capacity, a client may say something like “Well, mom has been neglecting her bills lately,” or “Dad doesn’t know what day it is anymore.” While these may be strong indicators of incapacity, a court needs a little more in order to appoint a guardian.

In fact, the Estates Code is perfectly clear that a court may never grant an application to create a guardianship for an adult incapacitated person unless a physician’s letter or certificate is presented to the court. This letter must describe in great detail the nature, degree, and severity of the proposed ward’s incapacity, including how this incapacity affects his or her ability to perform routine activities. Because of this requirement, it is important to consult any doctors or other licensed physicians having knowledge of the proposed ward’s capacity before applying for a guardianship. Without a medical finding of incapacity, any other allegations are merely evidence and will not be strong enough to compel a Texas court to act.

  1. It is not an Instant Process.

This rings true for almost any legal proceeding. People sometimes come in thinking they can create a guardianship in a matter of days or weeks. The fact is it does take some time, it is difficult to gauge how long a particular case may take. As previously discussed, filing an application is only the first step in the process. Service must be perfected, notices must be delivered, and doctors must be consulted before a court can even consider the case. Even after these steps are completed, the court appoints its own investigator to meet with the proposed ward and determine the necessity of a guardian. If the investigator ultimately agrees that a guardianship is necessary, an additional attorney ad litem is appointed. The ad litem is an attorney appointed by the court to specifically defend the rights of the proposed ward. He or she must meet with the proposed ward and represent them with due diligence at all stages of the case.

All of these steps require time and effort from all parties involved, and they should be rushed or overlooked. No matter how strong the case or how good the attorney, it is important for any guardianship applicant to understand the process before filing and implore patience throughout the process. Any anger or frustration with the timeliness of the process will only serve to drive wedges between all necessary parties, resulting in an even worse situation.

Guardianships are very powerful tools for individuals who wish to take care of someone who can no longer take care of themselves.

Guardianships are very powerful tools for individuals who wish to take care of someone who can no longer take care of themselves. For those who do not have an effective estate plan in place, it may be the only viable option available to make sure a loved one stays safe and healthy in their time of need. Having said that, these observations are meant to clue people into how the guardianship process works and what they can expect from the process. By keeping these 5 thoughts in mind, I hope people can approach guardianships as informed adults with realistic goals.

 


Matthew McDonough, Attorney

San Antonio Office


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