It is so often the case that people seek guidance from an estate planning lawyer in Arlington, TX regarding guardianship of an elderly parent who is losing the ability to care for themselves. This situation is tragic for all family members involved and it can be a difficult decision to make to seek involvement from the legal system. Many times, the loved ones encounter problems with other family members who either don’t think guardianship is needed or who feel as if they would be better suited to be a guardian. It is often the case that the person whom guardianship is being sought of also has strong feelings about having someone appointed as their guardian. As there can be many questions regarding guardianships and the purpose of them, it is beneficial to discuss what a guardianship is and what Texas courts require prior to applying for one.
What is guardianship? Guardianship is a legal process designed to protect people at risk of abuse, neglect, and exploitation. It removes rights and privileges from a person determined to be “incapacitated” under State law. The process involves the court system and an attorney. Guardianship may be full, whereby all rights and privileges are removed. Or it may be partial where some rights are assigned to the person with a disability. A guardianship is a very important and serious legal step for anyone. During the guardianship proceeding, a judge will determine if the person to whom guardianship is sought, known as the Proposed Ward, should have their rights such as right to vote, marry, or choose where they live, literally stripped from them. If one thing about the ramifications of that decision it is not difficult to understand why this process is complicated and requires a lot of steps to ensure the Proposed Ward’s rights are being protected.
Prior to a proceeding on an application for guardianship, a court will appoint an attorney ad litem for the Proposed Ward. This attorney’s job is to fully represent the Proposed Ward and ensure that the Proposed Ward’s rights are protected during the proceeding. In order to ensure that job is executed properly, the ad litem meets with the Proposed Ward to discuss his/her wants and desires, reviews medical records, and discusses the matter with the Proposed Ward’s family. Another important aspect of any guardianship matter is determining whether there are any less restrictive options out there that do not result in a person being stripped of rights that are guaranteed to them under the U.S. Constitution. These less restrictive options are commonly referred to as “alternatives to guardianship.”
It is important as an attorney whose clients are seeking guardianship of anyone, whether an elderly individual or a child, to explore possible alternatives to guardianship to determine what is best for the Proposed Ward. Often courts will also ask if these alternatives were discussed and if any were tried prior to the filing of an application for guardianship. It is important that the clients have an active knowledge of what other options are out there and if any of those options would provide a solution to the issues they are facing. Several alternatives to guardianship will now be discussed.
One of the first alternatives to guardianship is known as supportive decision making. Supported decision-making is “A process of supporting and accommodating an adult with a disability to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult.” Texas Estates Code § 1357.002(3). In supported decision making an agreement is drafted in which the person has a disability will chose a “supporter.” This supporter will help aid the person with the disability in making decisions by providing information, helping them consider all of their options, understand the risks and benefits of every decision, and help communicate the decision to others. Currently, anyone can serve as a supporter. It does not need to be a family member. During this process, the person with the disability and the supporter create and execute a legally valid supported decision-making agreement. This agreement must be witnessed and notarized. After this agreement has been fully executed the agreement does not allow the supporter to take over for the person with the disability and make decisions or act in their place. Both the person and the supporter retain their individual rights, but the agreement allows for the supporter to help guide the person through any and all decisions that need to be made.
Within a guardianship application the applicant seeking guardianship needs to outline for the Court what they are seeking and what form of guardianship they are requesting. A Proposed Ward has two individual items that someone can seek guardianship of. These items are the person and the estate. Seeking a guardianship of the person means that the person seeking guardianship of the Proposed Ward is seeking to have control over the medical decisions of the Proposed Ward. This also includes the ability to determine where the Proposed Ward lives and what people can be around them. Seeking a guardianship of the estate means that the person seeking guardianship of the Proposed Ward is seeking to have control over the financial decisions of the Proposed Ward. Two alternatives to guardianship in this regard is the drafting and execution of power of attorneys for the Proposed Ward. Drafting and executing a durable power of attorney would allow the designated agent to make all financial decisions for the person with the disability. Drafting and executing a medical power of attorney would allow the designated agent to make all medical decisions for the person with the disability. These documents allow for action if and when the person with the disability becomes incapacitated or they have some flexibility in that the documents can become effective upon signing. When a power of attorney becomes effective truly depends on the needs of each individual person. It is very important to note that a person who has already lost capacity cannot enter into a valid power of attorney. In the case of incapacity it may be that a guardianship is in the person’s best interest.
A fourth option to explore prior to seeking a guardianship, is the Social Security’s Representative Payment Program. This program provides benefit payment management for beneficiaries of social security who become incapable of managing their Social Security or Supplemental Security Income (SSI) payments. The Social Security Agency will appoint a suitable representative payee who will be expected to manage the payments on behalf of the beneficiary. Generally, family or friends are the most desirable to serve as payees. When friends or family members are not able to serve as payees, a qualified organization is sought to act as a payee in this instance. If this is the main source of a disabled person’s income, this may be a valid option rather than seeking a full guardianship.
Lastly, another alternative to a guardianship is a trust. Specifically, Revocable Living Trusts can be a useful tool when considering estate planning yourself or for an aging parent. Under Texas law, a Revocable Living Trust can set out provisions allowing one spouse to manage finances if the other spouse becomes unable as well as other aspects of the estate, such as distributing property. A trust agreement can outline how situations are to be handled if and when one spouse becomes disabled. These documents can also be used to set up Special Needs Trusts if one spouse is already incapacitated and the remaining spouse wants to ensure the disabled spouse is cared for if someone were to happen to the remaining spouse. Trusts have many benefits especially when dealing with the estate of an individual after death. However, be wary as the creation of a trust can also lead to improper Medicaid planning or scams.
When considering whether a guardianship is right for your family it is important to find an attorney who can help walk you through not only the guardianship process but also explore all of the alternatives to guardianship. The above discussed alternatives are the most commonly used alternatives; however, others do exist. It is imperative to have as much information and knowledge prior to making any decisions for a loved one. Stripping someone of their rights and ability to make decisions for themselves is something that should not be taken lightly. Truly understanding all of the options available in this situation will allow for the best decision to be made on behalf of the person with the disability.
Thanks to Brandy Austin Law Firm for their insight into estate planning and guardianship.