Guardianship – Power, Right, and Need
“He no longer has the right to vote.”
“He no longer has the power to decide where he lives.”
“He no longer has the right to drive a vehicle.”
“He no longer has the power to withdraw money from his bank account.”
Those can be hard words to hear for any American to hear, but sometimes it’s for that person’s own good.
As we are live longer now, more and more Americans are living long enough to see the mental diseases or mental decline long before their bodies decline. Alzheimer’s Disease and Dementia are two powerful mental diseases that make it extremely difficult for a person to continue to live independently and make important daily decisions for themselves. It’s hard on them, and its hard on the spouse and children. However, when your father doesn’t recognize your mother in the morning (after being married for forty years) or your mother believes her husband who passed away ten years ago is now back living with her, it may be time to make some hard decisions.
When a loved one has lost the ability to make daily decisions for themselves, it may be necessary for either a family to apply for guardianship over the person, who request the court to appoint an agency to be their guardian. Both routes are tough, but there are pros and cons that should be weighed before taking either.
The first step in weighing whether a Guardianship is needed for the loved one (Proposed Ward) is to have a mental examination done by a certified physician. This can normally be done by the person’s primary physician. After examining the Proposed Ward, the doctor will fill out a Certificate of Medical Examination (CME). If the doctor believes the Proposed Ward needs a Guardianship, he will state that in the CME. Once a CME endorses the proposed Guardianship, an application for Guardianship will need to be filed in the court and notice posted and sent to all the Proposed Ward’s relatives as per the Texas Estates Code.
The court will hold a hearing on the matter, weight the testimony, consider the applicant, examine the debts and finances of the Proposed Ward, review the doctor’s CME, and then issue the Court’s order. If the Court grants the Guardianship, the applicant will become the Guardian and will need to swear an Oath they will take care of the person and the person’s estate. A bond will be required with the amount determined by the Judge.
The Guardianship process requires steps to be taken in a specific order and it’s normally best to retain an attorney around the time the CME is done.
There are many other lesser restrictive alternatives to a Guardianship. Because a Guardianship normally strips the Ward of all power and gives it to the Guardian, it is considered an extreme last remedy. The other alternatives include:
1. A Durable Power of Attorney. If the Proposed Ward executed a Power of Attorney while they were still cognizant (meaning before they developed dementia or Alzheimer’s Disease) then the Power of Attorney Agent can perform the actions of the Guardian without having to go through the court process.
2. A Medical Power of Attorney. Similar to a Durable Power of Attorney, if the Proposed Ward executed a Medical Power of Attorney and HIPAA Authorization before declining, then the Guardianship may not be needed.
3. The Property/assets of the Proposed Ward are already in the name of the spouse or can be managed by the spouse.
4. Physician Directives and Treatment Directives.
5. And if the need does exist for a Guardianship, the Proposed Ward’s wishes will be honored by the Court if they executed a Declaration of Guardianship In The Event of a Guardianship while they still had capacity. This Declaration allows a person who is mental fine execute a document that states who they want to be their Guardian in the future, if the need ever arises.
It’s a hard decision to make by a loved, one but it’s a decision that has to be made more and more as we age. Don’t make the decision alone. Have an Attorney at Regan & Frisbie Law Firm help you weight your options.
Blaise Regan is a Partner at Regan & Frisbie, PLLC, a law firm focusing on Wills, Trusts, Probate, Contracts, Business Formations (LLC, Corporation, S-Corp Designation), Business Disputes, DTPA claims, and Consumer Litigation.
Regan & Frisbie, PLLC is located at 7160 Preston Road, Suite 100, Plano, Texas 75024.
Comments or questions, feel free to email him at Blaise@RFPlawfirm.com or call him at 469.200.4737.
*Nothing in this Article is to be considered as the rendering of legal advice for specific cases, or creating an attorney-client relationship, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and informational purposes only, and no warranty or representation is made as to the accuracy or completeness of the information contained herein.