In a guardianship proceeding, you may identify a person in your family such as your spouse, a parent, or other close relative, who is no longer capable of making decisions for themselves. This person may have suffered an injury or accident which has rendered him or her incapacitated or otherwise not of sound mind. Or the person may simply be getting older and the effects of dementia or other cognitive issues have arisen which have left the person unable to tend to their affairs.
This is a scenario that is dangerous, potentially, for a person. Your relative may not be able to make good decisions for their health or finances. Their bills like a mortgage may have been unpaid for an extended period which puts their home at risk of foreclosure. He or she may be making dangerous medical decisions. Whatever the case may be, it is a healthy sign for that person to have someone like you who is interested in pursuing guardianship on their behalf. However, there are steps to the guardianship process that need to be examined further so that you know what you may be signing up for when initiating this process.
Steps to initiating a guardianship case
Once you have decided to pursue a guardianship case you would need to file a petition with a probate court. This petition would state the nature of the case you are filing, the name of the person you are seeking to become the guardian of (known as a ward in Texas) as well as the relief that you are seeking from the court. Preparing this document correctly is important so having the advice and perspective of an experienced estate planning attorney can make a major difference for you and your family. The last thing you want to do is to try and go about this complicated process on your own only to make a mistake and have to go back to correct that mistake. This can cost you time and money, potentially.
In your petition for guardianship, you would be arguing that you should be named the person’s guardian because he or she no longer possesses the ability to make sound decisions for themselves and that he or she is not expected to recover their ability to do so. A temporary period of incapacity may result from a major accident, injury, or surgery. In those situations, you may need to seek out guardianship temporarily. Or the person hopefully would have created a medical or durable power of attorney that names someone who could make health care or financial-related decisions on their behalf, for example.
Guardianship proceedings are very thorough. A judge would need to hold a hearing for all parties to attend, if possible. That means you and your attorney as well as the potential ward and their attorney. This is especially important if this is not an “agreed” guardianship where the person that you are seeking guardianship or may not agree with your attempts to do so and wants to contest the application and petition which was filed with the court.
If you are basing the guardianship petition and attempt on the person’s medical status being in question or that he or she has suffered an illness, ailment, or impairment which renders him or her incapable of making good decisions for themselves then you need to be prepared to present evidence to that extent. For example, the judge may need to subpoena medical records to review those to assess whether guardianship is appropriate. Or, if the person agrees with your attempts to obtain guardianship, he or she may hand those over to the court without the need for a subpoena.
The judge will then issue a ruling on your guardianship petition- either granting or denying it. It is critical to remember the significance of a guardianship application once filed with the probate court. What you are doing is asking a judge to take away a person’s rights and ability to make their own decisions. It is almost as if you are asking a court to create a legal framework where the ward is reduced to child status due to their inability to make decisions for themselves which are in their best interests. In family law, this is known as being a conservator.
Benefits of a guardianship proceeding
A successful application for guardianship can be beneficial for families like yours. For instance, if you can be named as a loved one’s guardian then you can prevent a person from making decisions that can harm themselves. What if your loved one has been allowing another person, an investment advisor, for example, to make investments on your loved one’s behalf not because the investment is sound but because it allows him to collect sky-high commissions? This could be putting your loved one in a position where he quickly runs into financial problems.
Or your loved one may be facing uncertain medical times ahead and lacks the cognitive ability to make good decisions about what types of care are best for her. The last thing that your family wants is for her to be put in a position where she cannot consent to an important procedure because she simply cannot understand the ramifications of her decision. In that scenario, it can be extremely beneficial for everyone involved for you to be able to step in and legally make those decisions for her with her best interests in mind.
At the end of the day, naming a proper guardian allows the individual to have the quality of life which he or she may not have had previously. As strange as it sounds, your loved one may be harming themselves by having autonomy in their daily decision-making. This is a tough reality for many people to get past considering how much most of us value our independence. Anyone who has seen a loved one deteriorate over time can attest to how independence can quickly cause problems for a person who is no longer equipped to handle those responsibilities well.
Problems that can arise in a guardianship
Many of the problems that can come about because of a guardianship situation are related to the wrong person being named as a guardian. In your scenario, this likely would not apply to you. The fact that you are reading a blog post about guardianships long before you ever need to be named as a guardian is a good sign that you have your loved one’s best interests at heart and want what is best for him or her. However, not all people who act as a person’s guardian can say the same. Sometimes a person with bad intentions and a lack of character is named as a person’s guardian and that is when problems tend to start coming to the forefront.
When a guardian attempts to take advantage of a ward then you have a situation where there is an almost unlimited amount of danger for the ward, their property, and their health. Remember that the state of Texas gives the guardian complete authority to act on behalf of the ward in all situations unless the guardianship orders carve out exceptions to this rule. Unlimited authority over finances and other decisions gives the guardian a tremendous amount of power. When a guardian has been placed into this position and has bad intentions in mind then the family of a guardian has to be vigilant to stay up to date on what is happening.
For example, if the guardian wanted to he could sell your loved one’s vehicles, stocks, or other investments in a way that was underhanded that would benefit the guardian primarily. Some guardians are sneaky enough to be able to disguise the sale of an asset as being in the best interests of the ward when it was done to benefit the guardian. Elder abuse is what this is referred to in the law, where an older person is taken advantage of by someone close to him or her. Having access to their finances gives this guardian authority which left unchecked can create a very negative situation for the ward.
The simple truth is that even if the ward can function ok and has their basic intelligence still intact that does not mean that he or she will be fully able to take care of themselves. This is why the guardianship was likely established in the first place. There is some impairment or limitation which exists in their life which prevents him or them from caring for their needs, making decisions, or attending to activities of daily living. For that reason, the guardianship may have been pursued by the ward’s family. Older people with limited resources to begin with and no control over their resources due to guardianship are especially susceptible to being taken advantage of.
How can a power of attorney document protect you and your property in a guardianship?
If you are reading this blog post and anticipate a guardianship being a possibility in the future, then you need to consider completing a power of attorney first. A power of attorney allows you to appoint an agent to handle specific matters and decisions that you are unable to make during a time due to being incapacitated or for some other reason. For instance, say that you have a closing on a real estate property coming up on Friday. However, you find out on Monday that your mother passed away across the country and you need to fly out there to take care of some business and be with family. In that case, you could create a power of attorney and name an agent who would be designated by you to sign all the paperwork during the closing. This is a limited-scope power of attorney.
On the other hand, there are financial powers of attorney. Financial powers of attorney allow you to name an agent to oversee financial matters if you become incapacitated. For instance, consider a situation where you have a financial power of attorney document set up where you name a person as your agent if you become incapacitated. This would not be anything out of the ordinary. However, you could also take the document to the next level and list out the specific person that you would like to be named as your guardian if a guardianship proceeding takes place. If your incapacitation becomes permanent rather than temporary the power of attorney could lead right into your guardianship proceeding. That way you do not run the risk of having a person named as your guardian that you do not know of.
In some scenarios, a person may be granted guardianship in limited situations. For example, you could have guardianship over your estate but not over your person. This would mean that your property and the assets that you own would be subject to the decision-making of a guardian but that in other areas of your life, you would be able to retain decision-making authority.
A guardian will need to provide updates to the court periodically about the status of the ward, their health, and their finances. It is not as if the guardian will be able to venture out into the world without any checks on their authority to act on behalf of the ward. Quite the opposite, there are checkpoints and updates that the guardian will need to provide to the probate court. The health of the ward could improve, and he or she may be able to have the guardianship lifted if the health of the ward improves sufficiently.
An interesting situation arose in our office recently when a man came in to share a story about his young daughter. A father came into our office and told one of our estate planning attorneys that he was here to talk to us about helping him set up guardianship for his daughter. In this guardianship, it would be needed for his daughter to be able to receive life insurance proceeds from a relative who had passed away and had named the child as his beneficiary.
Our attorney was surprised to hear this. So was the father. When the life insurance company contacted him, they had requested that the guardianship be set up for the child to receive proceeds from the life insurance policy. This is not necessarily a situation that many of you could expect to find yourselves in, but it is interesting nonetheless. The idea of having a parent set up a guardianship for their child seems to be a bit of overkill but that is something to think about as you consider inheritances and other kinds of large money awards that may be coming to your child.
Final thoughts on guardianship proceedings in Texas
Finding yourself in a position where you may need to be named or name someone else as a guardian of you or a family member is an intimidating prospect. In general, you need to have a plan when it comes to going to probate court and asking to become a person’s guardian. Courts will assess your evidence, and the circumstances of the proposed ward and look to medical records for further clarification on these questions. Understandably, probate courts are not overly aggressive when naming someone a guardian of another person’s affairs. Having your heart in the right place is a good start but being able to defend your decisions in front of a court in subsequent months and years is also necessary.
When you work with an experienced estate planning attorney with the Law Office of Bryan Fagan you will be able to have a lawyer on your side who care about you, your family member, and your situation. It is not enough to assume that an attorney or anyone else has your back. You need to verify that through the person’s actions. From the moment that you walk into our office, I believe that you will be able to see that our attorneys and staff are client focused and attentive to the needs of the people that we serve.
Whether it is a guardianship, probate, estate planning, or power of attorney situation that you find yourself dealing with, we want you to know that our attorneys and staff are focused on serving you and your needs. We do not take for granted the ability to serve our community by providing affordable, top-notch legal services. Thank you for joining us today here on our blog where we post original content every day about the law in Texas.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way to learn more about the world of Texas estate planning as well as about how your family may be impacted by the filing of a probate case.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.