By Donna J. Yarborough
The American Bar Association has warned that a “silver tsunami” is coming in that the baby boomer generation is getting older and we can expect a lot more guardianship applications being filed and a lot more exploitation of the elderly.
What is a Guardianship?
When a person files an “Application for Guardianship”, they are seeking Court authority to make medical and/or financial decisions for another person. The person who gets appointed is the “Guardian” and the person who is losing some or all of their ability to make decisions is the “Ward”.
Guardianships can be granted for an adult or even a minor. And while many confuse Probate as “Family Law,” guardianship is a probate matter and handled by a probate court separate and apart from family law courts.
Two Types of Guardianships
There are two types of Guardianships: guardian of the person and guardian of the estate. Being appointed as Guardian of the Person gives the guardian the right to make healthcare decisions, decisions about residence, medications, education, employment and even the ability to limit others from visiting the Ward.
Being appointed as Guardian of the Estate gives the guardian the ability to make financial decisions, pay bills and hire healthcare providers. A guardianship basically takes the ward’s rights away or limits the ward’s ability to do some or all of things that they could do before without any judicial interference.
When Is a Guardianship Necessary?
A guardianship is necessary when a person or minor is considered “incapacitated”. A person is incapacitated if the person is: 1) a minor; 2) an adult who, because of a physical or mental condition, is substantially unable to: a) provide food, clothing, or shelter for himself or herself; b) care for the person’s own physical health; or c) manage the person’s own financial affairs; or 3) must have a guardian appointed for the person to receive funds due the person from a governmental source.
There are multiple reasons for obtaining a guardianship but the majority are granted where an elderly adult is being taken advantage of financially or cannot provide for their well-being and had not previously designated someone as power of attorney prior to their mental decline. There are instances when a person is starting to lose the ability to make rational or prudent decisions but has designated a power of attorney.
Sometimes a necessity exists for the appointment of a guardian because the person who is beginning to have a mental decline still has the ability to make decisions (even if they are poor decisions) and/or the ability to revoke the power of attorney. Additionally, many times the person who is named power of attorney recognizes the mental deficits of the other person and they start taking advantage of the incapacitated person financially.
Another scenario where a guardianship would be necessary is when an elderly person relies on a caregiver and the caregiver starts exploiting the elderly person. A common theme I see is the caregiver starts using the elderly person’s money for the caregiver’s expenses. Usually the family trusts the caregiver or the elderly person doesn’t have a close relationship with their children or
the one child who is involved with their parent is the person taking advantage.
Not only is a guardianship necessary in these scenarios to protect the elderly or incapacitated person, a guardian needs to be appointed to investigate whether the incapacitated person has changed their will, transferred any assets, made large gifts or changed any beneficiary designations on bank accounts, brokerage accounts, life insurance, etc. Once a permanent guardian is appointed, any powers of attorney executed by the incapacitated person are considered void.
The Guardianship Application
There are two types of applications for guardianship that a person can file with the probate court. In an extreme situation, meaning there is imminent danger to the person’s finances or welfare, a person would file for “temporary guardianship.” That means if a guardian of the person or estate or both is not appointed immediately, the person’s health or safety are in jeopardy or their finances or estate will be dissipated or stolen. A temporary guardianship only lasts for a short period and then usually the applicant will file for the second type of guardianship, a “permanent guardianship,” which continues until the ward regains their capacity, dies or a necessity no longer exists for a guardian.
Guardianship laws in Texas have changed
The Texas Legislature has made a huge overhaul to the guardianship laws in an effort to give the “incapacitated” person as much freedom as possible and to make the “least restrictive alternative an option” before taking a person’s rights away. Guardianships can be tricky, if you have a situation where you feel like you need to obtain guardianship over another person to protect their person or estate, or if you have any questions regarding guardianship, please call me.
Donna J. Yarborough
Phone: 469.916.7700 ext. 107