Stuff to Avoid When Possible: Adult Guardianships by Gretchen Benolken, Of Counsel

Adult Guardianships

Adult guardianships come in different sizes and shapes, and they are definitely not a one-size-fits-all item. Some things they all have in common are:

1) Someone (the Guardian) takes on some portion of another person’s decision-making.

2) Someone (The Ward) loses some decision-making authority.

There are some very good reasons why this must happen in some cases and why this should happen only when absolutely necessary. One example may be that an adult has some permanent disability that makes them unable to make certain decisions necessary to their own health, safety, or finances. Each area is considered separately. Someone may be perfectly able to handle their own medical decisions, maintain adequate living conditions and get adequate nutrition, but be unable to manage their finances. This doesn’t just mean making foolish spending decisions (That would put many of us in need of guardians!) It may mean that the person is not able to do simple math or comprehend monetary units or values. Even in this situation, the person may be able to rely on a trustworthy individual (often a relative) or an agency to manage their money. If such assistance is not available or the person’s disability still makes them subject to fraud or abuse, a guardianship may be needed.

In another situation, the person is handling their finances appropriately, but cannot manage their living condition or basic health needs. Again, agencies and programs are often able to provide adequate support and guardianship may be avoided. This sometimes happens when aging or illness results in diminished abilities. Someone realizes that the person needs help, but cannot provide it or help is refused. A Social Worker or Health Care Provider may be able to mediate or assist with finding help that is acceptable to the individual. If all else fails, it may be necessary to seek guardianship of the person.

Of course, a person may be disabled in a way that requires guardianship in all areas. Regardless of the type of guardianship needed, the legal process must be followed.

To establish a guardianship, a petition must be filed in the Probate Court. Any interested person may file such a petition even if that person does not personally want to be appointed guardian. The court must then determine if the individual named in the petition is in fact, incapacitated in a way that makes them need a guardian. That individual is referred to in the legal proceeding as the “proposed ward.” This requires several actions:

  • Notice must be sent to the proposed ward informing them that guardianship is being sought.
  • The Court must then hold a hearing. The person who has been identified as incapacitated may object at the hearing. That person may present his or her own evidence and even reports from a doctor or psychologist. This might be unusual, but nothing can be assumed until all facts are heard. If the court decides that a guardian is needed and that the proposed guardian is suitable, the guardianship will be issued. Appropriate documents are then created that identify the ward, the guardian, and the specific limitations and authorities of the guardian.
  • An “attorney ad litem” must be appointed by the court to provide legal representation for the proposed ward. The attorney ad litem’s role is to determine the desire of the proposed ward and present all available legal arguments to the court to attempt to obtain the proposed ward’s desired outcome as to whether a guardianship will be created, the extent of any guardianship, and if one is created, who the guardian will be.
  • A “guardian ad litem” may also be appointed by the court to investigate the facts and submit a report to the court to make recommendations regarding the “best interests” of the proposed ward, which are not always consistent with the desires of the proposed ward that the attorney ad litem must advocate.
  • The applicant must also submit a statement from a physician and/or a psychologist.
  • A proposed guardian must be identified and vetted. If this is an individual who is not a professional guardian, some training may be required. In a few circumstances the court may waive the training, but usually it must be completed. The purpose of such training is to be sure the guardian understands what the court expects of them. There are laws to be followed and reports to be submitted. If no relative or friend is proposed, a professional guardian may be proposed.

adult guardianships

As you can see, this is not a matter that is taken lightly by our courts. It also is not something that should be considered bad or wrong. Sometimes it is a necessity but it must be treated with the seriousness it deserves.

Even when a guardianship is issued, there are some decisions that a guardian may not make. For example, the guardian cannot consent to committing the ward to an inpatient psychiatric facility nor can the guardian sign a Do Not Resuscitate Order for an incapacitated person. These actions, if needed, would have to be handled as involuntary and the court would have to make the decision.

The guardian must also make decisions based on the ward’s values and preferences if those are known. It should always be the goal to respect the opinions and choices of the individual regardless of his or her current incapacity.

Despite all of the safeguards, there have been abuses. Appointed guardians have managed to isolate their wards from caring family, diverted funds to their own use, neglected to provide necessary care and even medical attention. There have been some notable cases including one report of a pastor who managed to be appointed guardian of the estates of multiple parishioners. He was able to gain control of huge amounts of money and used them for his own gain. While this was exceptional enough to make headlines, it does point out the need to be cautious.

Some alternatives to consider other than adult guardianships:

  • While the person still has capacity, he or she can create documents that may obviate the need for a guardian in the future. For instance, Guardian of the Estate can be avoided by creating a living trust, and money can be managed under a power of attorney. (Once a person has lost their capacity, however, they can no longer create these types of documents and guardianship may be the only option.)
  • Less restrictive alternatives such as supported decision-making may be possible if the incapacitated person has a relative or other person who can help explain choices and help the person make decisions.
  • Identify someone to help manage money including paying bills. There are some programs in Texas that provide Money Management services.
  • A joint checking account can be set up allowing another person to assist in managing funds for the person who needs help.
  • A representative payee can get government benefits for the incapacitated person and open a bank account for that person.
  • In some cases, it is possible to help a person name someone to make health care decisions for them.
  • There are a number of supportive services for people with disabilities that make it possible for them to manage independently. These include Home Health Care, Meals on Wheels, transportation services, emergency call devices and other special services for people with disabilities.

The local area agency on aging for people sixty and older, their families and other caregivers (such as DADS) can assist with identifying a myriad of services that may give a person the support they need without guardianship.

The best way to avoid the need for guardianship is through preventive steps that can be taken by a person before becoming disabled. Your Estate Planning Attorney can assist with crafting the necessary documents, which include Health Care Durable Powers of Attorney, Durable Financial Powers of Attorney and Revocable Trusts.

Take Away:

  1. There are several types of Adult Guardianships:
    • Guardian of the person
    • Guardian of the estate
    • Guardian of the person and the estate
  1. All guardianships are ordered by the court.
  1. All authorities given to the appointed guardian are expressly stated.
  1. Because the rights given to the guardian are taken away from the ward, guardianships are serious matters and should be avoided when other less restrictive means can be used.
  1. In order to avoid the necessity of guardianship in our own futures, we can work with an estate-planning attorney to set up Powers of Attorney and Trusts. This allows us to decide who will act for us in the event of temporary or permanent incapacity.
  1. Guardianships may be unavoidable in certain situations such as those in which an individual loses capacity prior to signing the types of documents discussed herein or in situations in which an individual is highly susceptible to financial and/or personal exploitation.
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Leigh Hilton is an ACCREDITED ESTATE PLANNER® based in Denton and serving the DFW Metroplex. Areas of practice include:
Wills, Trusts & Estates | Elder Law | Probate Law | Estate Planning