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Guardianship2018-08-13T11:15:04+00:00

Do You Need A Guardianship Attorney

A guardianship is a legal proceeding where a Court appoints someone to be responsible for the care of an incapacitated person. The Texas Estates Code Sec. 1002.017 defines an Incapacitated Person as either:

(1) a minor;
(2) an adult who, because of a physical or mental condition, is substantially unable to:
(A) provide food, clothing, or shelter for himself or herself;
(B) care for the person’s own physical health; or
(C) manage the person’s own financial affairs; or
(3) a person who must have a guardian appointed for the person to receive funds due the person from governmental source.

Usually, the person appointed is a family member. However, a guardians can be a friend or a certified guardian. An entity can also serve as a guardian, such as Guardianship Services, Inc.

In the past, Texas Courts were quick to order full guardianship. Changes in the law now require Courts to look at less restrictive alternatives.

LESS RESTRICTIVE ALTERNATIVES TO GUARDIANSHIP

Before filing for guardianship, it is necessary to explore some other options available under the law. Some of these alternatives are as follows:

  • Statutory Durable Power of Attorney to handle financial affairs
  • Health Care Power of Attorney to handle personal care and medical issues
  • Designation of Guardian In Event of Later Incapacity to appoint or restrict those individuals that a person may or may not wish to serve as their guardian when the time comes
  • Creation of a Management Trust in lieu of a Guardian of the Estate
  • Creation of a Special Needs Trust
  • Representative Payee for Benefits
  • Supported Decision Making Agreements

There are many more alternatives that may be available in lieu of a guardianship. In most cases, a well written Estate Plan will have addressed these issues in advance and may alleviate the need for a guardianship. You should consider filing a guardianship if there are no less restrictive alternatives for your situation.

GUARDIANSHIP OF THE PERSON

When is a guardianship of the person necessary? When your aging parents are unable to take care of their own medical needs or daily chores, it may be necessary to explore your options. You may already be paying the bills or helping your parents with their finances. However, a parent may forget to take critical medications or no longer bathe or feed themselves. You may need to seek a Guardian of the Person.

The Texas Estates Code Section 1151.051 sets out a list of rights, powers, and duties of a Guardian of the Person. The Court may appoint a Guardian of the Person with the full powers listed in the Code, or the Court may limit the powers based on the level of incapacity of the Ward. Many times the guardian is a family member. When family members cannot serve as guardian, the Court may appoint a private professional guardian or an entity.

The Court requires a Guardian of the Person to file annual reports. This report shows the Court the condition of the Ward each year. The Court may remove a Guardian if he fails to file these reports.

What happens if an individual can still take care of themselves but not their own finances?

GUARDIANSHIP OF THE ESTATE

There are situations where a person can still schedule medical appointments and handle daily living activities. Guardian of the Estate may be necessary if the individual cannot manage their own finances. This goes beyond forgetting to pay a bill or failing to budget. Sometimes the individual is being financially abused by a caregiver or a family member, or falls prey to financial scams. The key is repetitive behavior not a single transaction.

In these circumstances, you should apply for Guardianship of the Estate only. You could also consider a management trust in lieu of a guardianship. The Guardian or Trustee would manage the financial affairs for the Ward. This may include paying bills and managing the Ward’s weekly budget.

Once appointed Guardian, an Inventory must be filed with the Court. Every year thereafter, annual accountings are required. This accounting is a report to the Court of the financial status of the Ward. Therefore, the Guardian should keep accurate records of each and every transaction made on behalf of the Ward, including all receipts coming in and all monies being paid out.

What if a person cannot manage their healthcare or financial affairs?

GUARDIANSHIP OF THE PERSON AND ESTATE

You may have to apply for a full guardianship if someone is fully incapacitated. A full guardianship consists of both a Guardian of the Person and a Guardian of the Estate. Often times this person is one and the same. If the Guardian of the Person cannot qualify as the Guardian of the Estate, a Corporate Fiduciary may be appointed. In either case, the Guardian(s) is required to file the annual accounting and the annual report as discussed above.

FINANCIAL EXPLOITATION

Texas Courts take financial abuse and exploitation seriously. A person doesn’t have to be elderly to be vulnerable to financial abuse and exploitation. Many times, the victim doesn’t realize it is happening. Other times the abuser may threaten the victim with harm or injury. The abuse can even be an adult child threatening to withhold love or to restrict access to grandchildren.

Everyone should be vigilant in looking out for family members and friends, church members, co-workers, neighbors. If you suspect a family member or caregiver is financially abusing an individual, say something. SPEAK UP.

If you need help in Tarrant County, please visit Elder Financial Fraud Resources for a list of resources and contact information. If you are unsure where to turn, feel free to contact my office and we will assist any way we can.

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