By: Adriane S. Grace
Once a week we receive a phone call to our office from a friend or family member of an individual suffering from a mental health crisis. Their question is the same, “Can I get a guardianship over them and force them to take their medications, or get psychiatric care?” Or sometimes the question is whether they can get a trust or some other legal document to prevent this person from spending their money irresponsibly or giving it away. Unfortunately, the answer to this question is generally, “No”.
Due to major changes in guardianship law over the last 5 years, it has become increasingly difficult to obtain guardianship over a disabled person. Statutory probate courts, which have the responsibility of overseeing these cases, are scrutinizing applications, and applicants for guardianship more closely. As a result, not only has obtaining a guardianship become more difficult, but also more costly.
Applicants for guardianship (family members of the disabled person) are required by law to consider alternatives to guardianship and supports and services before they file for guardianship. For people suffering through a mental health crisis such as suicidal depression, a manic episode of bipolar disorder, psychosis, or a severe drug or alcohol addiction, there is one important alternative to guardianship, which statutory probate courts also oversee: a mental health commitment.
The process for an involuntary commitment to a psychiatric hospital can be found in Chapter 574 of the Texas Health Code. This process allows family members to alert the police and the court to situations where a person may need immediate psychiatric care if they are “likely to cause serious harm” to themselves or others. The policy behind this process is that with time and the right treatment, these individuals are usually able to return to a stable mindset. As such, guardianship is viewed as unnecessary, and even an infringement of the individual’s constitutional freedoms.
Therefore, the general rule for guardianship is that it will be approved by the court when the individual is completely unable to care for themselves and/or their property and finances on a permanent basis. Medical conditions that tend to result in this finding include severe intellectual or developmental disabilities, traumatic brain injury, post-stroke dementia, and Alzheimer’s dementia.
Adriane Grace regularly consults with families on guardianship, alternatives to guardianship, and supports and services including public benefits, and helps them navigate these options to avoid costly guardianship proceedings. She also assists families, when guardianship is necessary, to navigate the legal process in uncontested proceedings, and to defend the application or applicants in contested proceedings involving complex family dynamics. She can be reached at 469-916-7700 x114 or via email on her bio page.
ADRIANE S. GRACE, Shareholder
Ms. Grace primarily advises and represents clients in Probate, Guardianship, and Social Security matters. She is certified by the Texas State Bar as an Attorney Ad Litem in Texas courts and regularly receives court appointments in Guardianship proceedings and Heirship Determinations from the statutory probate courts in Dallas County, Denton County, and Collin County. In addition, she devotes part of her legal practice to pro bono work and accepts probate cases from Legal Aid of Northwest Texas in Collin County and the Dallas Volunteer Attorney Program.Learn more about Adriane…