No one wants to be under a guardianship unless it is absolutely necessary. Almost no one really wants to be a guardian. We recognize that guardianship takes away a person’s civil rights, leaving them with less control of their lives. Being a guardian can be very burdensome.
An elderly or disabled person who is being abused, neglected or exploited needs protection but does not necessarily need a guardian. Adult Protective Services can be contacted at 1-800-252-5400. If the person is in a nursing home or other facility, a report can be made to Texas Health and Human Services at 1-800-458-9858. If their rights are not being respected, the Texas Long-Term Care Ombudsman can be called at 1-800-252-2412. Other places to call for help can be found under Elder Abuse: Who to Call.
There are many Alternatives to Guardianship, some of which are listed on this website. But if no alternatives work, guardianship may be necessary.
If a person has legal capacity to sign contracts, he can put these in place before the need arises. But sometimes people enter chronological adulthood without having that legal capacity. Sometimes people encounter an accident or an illness which robs them of that capacity and do not have Powers of Attorney or other arrangements in place. They may need a guardian to manage their financial affairs (their estate) or a guardian to manage their personal affairs (deciding where they will live or work, whether they can marry or join the armed forces, whether they can drive a car.)
The ARC of the Capital Area offers a pro bono guardianship program for parents of children with an intellectual disability which prevents them from ever signing a Medical or Durable [Financial] Power of Attorney. The attorneys working in this program or with Volunteer Legal Services are Approved Guardianship Attorneys, as are all attorneys qualified to represent someone applying to be a guardian or contesting the appointment of someone who has applied to be a guardian. A county-by-county list is available on the State Bar of Texas website (Attorneys may practice in counties other than the county in which they are listed.)
There are two types of guardianship.
Guardianship of the Person
Guardianship of the person may allow the guardian to decide where the person lives or works, who they marry, and whether to apply for a mental health detention (with immediate notice to the probate court.) It usually preserves the right to vote but not the right to carry a gun. This form of guardianship is often sought when a person with an intellectual or developmental disability turns 18 or when a person with dementia refuses to stay in a memory care facility or nursing home. A Medical Power of Attorney does not allow the agent to determine where the person lives: a guardianship of the person does. A small bond is required. Every year a report on the person’s well-being must be filed with the court.
Guardianship of the Estate
Guardianship of the estate (also called, “conservatorship”) may be needed when the person has more than Supplemental Security Income (SSI) or has more than negligible assets and can no longer manage their finances and either does not have an agent under a Durable Power of Attorney or has an untrustworthy agent. If the person only receives SSI, someone may be appointed their representative payee, avoiding the expense and trouble of guardianship. Similarly, if the person receives VA benefits, a VA fiduciary may be appointed, again avoiding the expense and trouble of guardianship. A guardian of the estate must post a bond in an amount based on the person’s income and assets. Every year a guardian of the estate must present a sworn accounting, complete with receipts. This is audited by the court.
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 practice in surrounding counties as well.
Every guardianship application must be accompanied by a Physician’s Certificate of Medical Examination. This should be completed by the person’s regular physician, neurologist or psychiatrist and, ideally, by someone who knows the person well. Someone suffering from dementia may best be seen by a geriatric neuropsychiatrist . As the document’s name indicates, it must be completed by a physician. If the person will not agree to see a doctor, the Approved Guardianship Attorney can apply for an Independent Medical Examination.
The applicant must submit to a criminal background check, watch videos about guardianship and discuss her duties with her attorney. She must complete several forms for the court and, after the hearing, apply for a bond.
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.