No one wants to be under a guardianship. Almost no one wants to be a guardian.
As Approved Guardianship Attorneys and members of the Texas Guardianship Association, Terry Garrett and Melanie Ibarra-Herrera help people find Alternatives to Guardianship. When these do not work, they help people apply for and administer a guardianship.
If a person has legal capacity to buy a car or sign a lease, perhaps with advise and support, he can sign a Durable Power of Attorney. If he understands that it would be helpful to name someone to speak for him when he cannot communicate, he can sign a Medical Power of Attorney. But sometimes people enter chronological adulthood without having that legal capacity. Others encounter an accident or an illness which robs them of the capacity to sign one or both of these powers of attorney or have other arrangements in place. They may need a guardian.
The ARC of the Capital Area offers a pro bono guardianship program for parents of young adults with an intellectual disability which prevents them from ever signing a Medical or Durable Power of Attorney.
There are two types of guardianship.
Guardianship of the Person
A guardian of the person may decide where the person lives or works, who they marry and whether they can drive. A guardian of the person may decide whether they should go to the doctor or take medicine; may take them for an emergency psychiatric evaluation and may apply for a mental health detention (also called an Order of Protective Custody) with immediate notice to the probate court.
Guardianship of the person is often sought when a person with an intellectual or developmental disability will soon turn 18. It is also sought when a person with dementia refuses to go to a memory care facility or a person who needs nursing home care refuses to enter a nursing home. A Medical Power of Attorney does not allow the agent to determine where the person lives: a guardianship of the person does. If the person placed under the protection of the guardianship only receives Social Security benefits and has no more than $20,000 in assets, the guardian of their person can manage these: no guardianship of the estate is needed. A small bond is required. Every year the guardian must send the court a report on the person’s condition and well-being.
Guardianship of the Estate
Guardianship of the estate (also called, “conservatorship” in some states) may be needed when someone cannot manage their finances but has not granted an agent a Durable Power of Attorney or a sufficiently broad Durable Power of Attorney. It may also be needed if someone has an untrustworthy agent and lacks the legal capacity to remove him or if someone is the perpetual victim of scams, their own charitable intentions, or profligate, unaccountable spending. If the person only receives Social Security benefits, a representative payee may be appointed instead. If the person receives VA benefits, a VA fiduciary may be appointed. If the person has a business but does not have plans in place for its operation during a period of disability, a receivership may be sought instead. People who have other funds or assets may need a guardian. A guardian of the estate must submit an Inventory and post a bond in an amount based on the person’s income and assets. Prior court approval is required for almost every action. A sworn accounting, complete with receipts, must be presented to and audited by the court every year.
Applying for Guardianship
If the person does need a guardian, the application must be brought by an Approved Guardianship Attorney. Some probate and county courts have lists. There is also a list on the State Bar of Texas website. While an Approved Guardianship Attorney may only be registered in one county, many also practice in surrounding counties. Some practice statewide.
Every guardianship application must be accompanied by a Certificate of Medical Examination. This should be completed by the person’s regular physician or a neurologist or psychiatrist or by an advanced nurse practitioner whom they supervise. If the person is challenged by an intellectual or developmental disability, in some instances it may be completed by a psychologist. Someone suffering from dementia might best be evaluated by a geriatric neuropsychiatrist. If the person refuses to be examined or disagrees with the doctor’s conclusions, a court-ordered Independent Medical Examination may be sought.
The applicant must complete a one hour online training video, submit to a criminal background check and discuss her duties with her attorney. She must complete several forms for the court. After the hearing, she must apply for a bond. Only when the applicant and the judge have both signed the bond are Letters of Guardianship issued. These must be renewed annually.
If you do not want to apply to be the guardian but think that a guardian is needed, perhaps for a neighbor or for someone you encounter in your work as a health care provider, social worker or case manager, you can ask the probate court to look into the matter by sending a Court-Initiated Guardianship Information Letter.
Guardianship need not be forever. A person can have their rights restored. A recent survey by the American Bar Association found that the largest group of people who had their rights restored (1/3rd) were people with a mental illness. On average, they were under a guardianship for two years.