Every year, countless seniors with diminished capacity fall victim to financial exploitation. As disabled minors reach adulthood, parents legally lose the authority to make decisions for them. Elderly citizens and transitioning minors deserve protection. Explore the pathways to protect their interests.
Guardianship is a crucial legal process in Texas, designed to protect vulnerable individuals who may be unable to care for themselves or manage their affairs. In some states, the term Conservatorship is used. Guardianship provides for the person’s physical care and management of his or her money while preserving, to the largest extent possible, that person’s independence and right to make decisions affecting his or her life. The person who is the subject of a Guardianship is called the “ward”. Guardianship removes certain rights and privileges from the “ward”.
Guardianships are created for a variety of different reasons. Guardianship is often be appropriate solution in cases involving:
Depending on the circumstances necessitating a Guardianship, the decision to seek Guardianship can be emotionally distressing and difficult for the alleged incapacitated person and his or her family members. Our professional and empathetic approach ensures you have the information you need to make informed decisions.
Legal guardianship proceedings becomes necessary when an individual lacks the capacity to make decisions about their personal care and finances.
There are two main types of Guardianship – Temporary and Permanent. A court may appoint a temporary guardian if presented with “substantial evidence” that an adult incapacitated person or minor requires the immediate appointment of a guardian. This type of guardianship is valid for a limited time.
The majority of guardianships are “permanent”. Permanent guardianships can be either total or partial. This means the guardianship will continue until it is terminated either by death of the ward or the restoration of the wards rights.
There are two types of guardians in Texas. Guardian of the Person, who is responsible for the ward’s well-being, and Guardian of the Estate, overseeing their finances. Often both a guardian of person and a guardian of estate are appointed and this can be the same person.
A guardian who possesses any or all powers and rights with regard to the property of the ward. Duties include the following:
A person who is responsible for and who advocates for the health, well-being and personal needs of the ward. Duties include the following:
Guardians take on significant responsibilities, including managing finances, making medical decisions, and providing care.
When it comes to guardian selection, the court considers the ward’s best interests. Typically prioritizing spouses and then next of kin. A spouse has priority over any other individual, including children. This can become an issue in blended families. It is a serious issue in cases where the marital relationship has been emotionally or physically abusive for the ward.
Because the imposition of a guardianship has severe negative consequences for the ward, the court will explore less restrictive alternatives, like powers of attorney, medical directives, money management programs, management of community property by a competent spouse.
Proactive estate planning can help elderly individuals avoid the need for guardianship, ensuring their wishes are respected. Designating someone to manage your financial affairs in a Durable Power of attorney or designating someone to make your medical decisions for you in a Medical Power of Attorney will usually take care of the needs that an application for an appointment of a guardian typically addresses. It is important to understand that not all powers of attorney are created equal and consultation with an attorney that deals with guardianship issues regularly is strongly advised.
Guardianship involves expenses such as filing fees, attorney costs, and medical examinations, which may be reimbursed from the ward’s estate. If a contested guardianship occurs, the costs will typically come out of the estate of the ward. There are situations in which others will become responsible for the cost of litigation.
In cases of a contested guardianship where no guardianship is created because the court finds the proposed ward has full capacity, the applicant may not be reimbursed by the proposed ward’s estate for funds spent on costs and attorney’s fees.
In cases where the proposed ward is indigent, some or most of the court expenses may be paid out of the funds of the county in which the alleged incapacitated person resides. The filing fees may vary from county to county, but in almost every case there will be charges associated with creating a guardianship.
Establishing a guardianship can be expensive, and the costs of administering a guardianship of the estate can easily exceed the annual income of the estate. For this reason, it is usually a good idea to see if there are any alternatives to a guardianship before starting down the guardianship path.
Understanding the guardianship process is crucial for families facing this decision. It involves court appointments, assessments, and legal proceedings. Applicants are required to retain an attorney in guardianship proceedings. An attorney will be appointed by the court to represent the ward and protect the ward’s rights.
Meeting the legal requirements for guardianship is a critical first step, ensuring the ward’s best interests are upheld. There are required reports that must be filed annually. The management of a ward’s assets may require the guardian of the estate to obtain court approval prior to taking action.
Do not discount the less than harmonious relationships that exist between your children, your spouse and children, your siblings and spouse, or your siblings and children. If you have no close family members, it is that much more important for you to put a plan in place for your care should you ever end up in the position of needing a guardian. You must plan while you have capacity and do it regularly in cases where there is likely to be discord later.
No discussion about guardianship can be had without addressing the pitfalls for the ward of becoming subject to a guardianship. Guardianship can be and often is the only and best solution for a senior that has lost mental capacity or a minor disabled child. But, as helpful as guardianship can be, there is a dark underbelly. It is fraught with danger for the ward. The unfortunate fact is that when it comes to the exploitation of seniors and disabled adults, it is typically at the hands of family members. The bad actor family members engage in acts of financial exploitation, abuse, mistreatment, and neglect. Family members are not the sole perpetrators of these despicable acts against another human but paid caregivers and nursing homes are also common bad actors.
The danger of a selfishly motivated family member or criminal third party gaining control of and access to a vulnerable senior is very real and can have devastating results. A 1998 study showed that elders who suffer from abuse, neglect or exploitation are three times more likely to die than those who have not suffered from abuse, neglect or exploitation. Deepening the tragedy is the fact that this exploitation frequently originates from within the elder person’s inner circle – be it family members, close friends, or caregivers. Watch our video on choosing a fiduciary.
Financial abuse can take place even with the elder person’s apparent awareness and sometimes their consent, even if they remain mentally capable. This complexity often makes it challenging to identify or provide proof of such abuse. Moreover, many victims find themselves in a difficult position, reluctant or unable to point fingers at a friend or family member who might be behind the exploitation.
If you are a senior who has been diagnosed with an illness that will decrease your mental capacity over time, you must start planning now! Your disease may progress faster than anticipated and you face the real possibility of waiting too long to start planning for yourself. You are then in a position in which making those decisions for yourself is no longer an option. Don’t leave it up to the courts to decide who should be in charge of your care and finances. Let our firm help you put a plan in place while you still have decision-making capacity.
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