A few weeks ago, I spent a Monday afternoon in Galveston Probate court. The island is really coming back and doing great though it has a long way to go. I am consistently amazed by the folks in the Galveston Courts. Judge Burwell lost her house to Ike. Her clerk had to swim out of her house because of flooding from the storm surge. But the Monday after Ike (which hit on a Friday night) they were back in court working hard. It’s been eight months and we’re all starting to get back to some semblence of normalcy. The hearing was a contested guardianship matter. Often it is hard to find anyone willing to serve as guardian of a proposed ward. Care of an incapacitated adult can be rewarding but it is also a hard job. It was great to see two qualified applicants.
It occured to me that there is a need to explain the answer two key questions in discussing guardianship with clients: what is it and why is it needed.
What is a Guardianship? A guardianship is a legal proceeding to appoint an caretaker for an incapcitated individual. There are two kinds of guardianship: Guardianship of the person, with the authority to make decisions regarding where the ward lives and medical care and Guardianship of the Estate which has power over financial decisions. These powers can be split or all vested in a single person. The Guardian must post bond, take an oath and file annual reports. The court will issue Letters of Guardianship which give the Guardian the power to act on the ward’s behalf.
The applicant files an application with the appropriate court. The court then appoints an Attorney ad Litem to represent the proposed ward. The Ad Litem meets with the proposed ward, reviews financial and medical records and generally represents the proposed ward. After a hearing, if there is sufficient evidence, the court may find the proposed ward is incapcitated, that a need for guardianship exists, and that the applicant is qualified to serve as guardian.
When does a guardianship become necessary? Sometimes a person, because of mental or physical condition, is unable to provide food, clothing or shelter for himself or herself; care for his or her own physical health; or manage his or her own financial affairs. After a court proceeding with a finding of a need of guardianship, the applicant is appointed as guardian of the proposed ward with the authority to make decisions for the ward regarding financial and personal matters.
There a couple of ways that a guardianship of an adult can come about. Often the family of an individual realizes that there is a need for help. With the U.S. population aging we are seeing more cases of dementia, Alzheimers and other forms of incapacity. In other cases, Adult Protective Services gets a referral from emergency services such as hospitals or police that an individual needs assistance.
As a family member can’t I make these decisions? No. You cannot walk in to your mother’s bank this afternoon and close her accounts if she does not have dementia, so why would you be able to if she does? There has to be some legal authority for you to handle matters. You can plan ahead by getting a Financial Power of Attorney and Medical Power of Attorney that becomes effective upon incapcity, but often people do not think of this until it is too late. At that point, there is a need for a court proceeding as described above. In a coming post I’ll discuss avoiding guardianship and alternatives to guardianship.
A good resource for guardianship information is the Texas Guardianship Association:
http://www.texasguardianship.org/
