It is prudent to plan for the unthinkable: death and incapacity. Wills are the primary mechanism with respect to planning for death and providing an orderly and efficient administration of your estate. Incapacity is an area that affects more and more of us each year as our parents age and live longer. Whether by illness, injury, age or some combination of the three, it is likely incapacity will become an issue that you will have to deal with at some point in your life: either yours, your spouse's, your children's or your parents'.
Prudent Planning Documents
An elder law attorney or an estate planning lawyer can create a properly drafted medical power of attorney to provide peace of mind and the legal authority for one person to make health care decisions on behalf of another who no longer has the legal capacity to make such decisions. A durable power of attorney can provide peace of mind and the legal authority for one person to make other decisions regarding assets and property on behalf of another who no longer has the legal capacity to make such decisions.
These documents are absolutely critical to round out and complete a prudent plan, and you should contact an elder law attorney or estate planning lawyer if you or a loved one need these documents.
Unfortunately, most people forgo planning and find themselves in a situation where a loved one has lost their capacity to make decisions on their own behalf and/or physically take care of themselves. In these cases, a guardianship proceeding may be required.
What is a Guardianship?
Guardianship is essentially a transfer of legal rights and obligations from one (without capacity) to another (with capacity). The age of the person is not relevant, as guardianships are created for people of all ages. However, guardianships are most common with the elderly, as our parents age and become incapacitated and no longer maintain the ability to make significant decisions on their own.
A guardianship enables one person, the guardian, to make those legal decisions on behalf of the incapacitated person. An example that will help clarify this relationship is that of a parent of a minor child. When your child is say, 5 years old, you must sign and consent to everything on your child's behalf. Your child cannot enter into a contract, waive liability on a field trip, buy or sell property, consent to medical treatment or any other decision in which legal capacity is required. Once your child turns 18, he or she is free to make all of those decisions (whether they are truly ready or not). A guardianship proceeding is the legal mechanism used to bring an adult back under the legal responsibility of another, because of legal incapacity.
Creating a Guardianship - Guardianship Proceeding
A guardianship proceeding is a fairly straightforward process and any elder law or probate attorney can explain it to you. However, because a guardianship in effect strips certain rights from one person and vests them in another, the law provides strict procedural requirements be followed in order to protect the proposed ward (the person over whom the guardianship is sought).
In a nutshell, an interested person (typically a spouse, child or other close family member) consults with an attorney about the need for a guardianship. The attorney explains the process and costs involved, along with the obligations and responsibilities of the guardian once it has been approved.
A critical requirement in a Texas guardianship is the "doctor's letter," which must be provided by a qualified physician and filed with the court. This letter must contain certain required findings and other information and must be based upon an examination of the proposed ward. The examination and the letter itself must conform with strict timing requirements.
The court will then appoint an attorney ad litem to represent the proposed ward. This attorney only represents the proposed ward and will conduct an investigation on his or her own, including visiting with the proposed ward and examining the relevant medical and financial records. The attorney ad litem is responsible for ensuring the proposed ward's rights are preserved and, when necessary, to fight the creation of a guardianship. The attorney ad litem is typically paid out of the proposed ward's estate or from the family.
Typically, when the attorney ad litem completes the investigation, the matter is set for a final hearing in front of the judge. The applicant, the proposed ward (if able) and other witnesses appear and testify under oath. If the matter is uncontested, this process moves quickly and can be completed in fifteen minutes. If the guardianship is contested, it takes on the nature of a trial in which the judge must decide if the facts and evidence support the creation of a guardianship.
Once the judge approves the guardianship, a bond will be required of the applicant to protect the assets of the ward. The applicant will also take an oath and be given additional instructions from the judge regarding the reporting and other continuing obligations and responsibilities of the guardian.
Becoming a guardian is a huge responsibility and should not be taken lightly. Unfortunately, without proper planning earlier in life, a guardianship may be the only option.
If this is a situation in which you find yourself, you should consider speaking with an elder law or probate attorney to determine whether a guardianship is appropriate in your circumstances.