Recipe for a contested guardianship: Take one senior, add a dash of dementia, mix in a dollop of assets, simmer with decades of resentment and hurt feelings, and garnish with one or more disgruntled family members.
Guaranteed to cook up into a gut-wrenching and expensive guardianship case.
A guardianship is a court proceeding that is initiated to have a person (the “ward”) declared legally incapacitated, take away one or more of that person’s rights, and have a guardian appointed.
There are two types of guardianships in Texas. A “guardian of the person” handles personal decisions regarding the ward, such as where the ward lives and the medical care a ward receives. A “guardian of the estate” handles the ward’s finances. The detailed scope of a guardian’s duties is determined by a judge on a case- by- case basis.
A guardianship case is initiated when someone files an application for guardianship in the appropriate court, such as a probate court. Ten counties in Texas have designated probate courts. In the other 244 counties a guardianship would usually be filed in a county court.
Who can file a guardianship application? Anyone. That encompasses the loving adult child, the exploitive neighbor, and the local UPS driver. Who can contest a guardianship application? Anyone.
The only restriction is that the person filing or contesting cannot have an interest that is adverse to the proposed ward. The courts are still working out what constitutes an adverse interest. Frankly, guardianship law in Texas has undergone a mini-revolution since 2010 and there remain a few bugs in the system.
(Now may be the time to disclose an endearing quirk. In Texas a court with guardianship jurisdiction can start a guardianship action on its own initiative. This plays out when the court becomes aware, by fair means or foul, that someone may need a guardianship. The court opens an investigation and then, if it deems it necessary, authorizes someone to file a guardianship action.)
Once a guardianship application is filed, the judge appoints an attorney ad litem to represent the proposed ward. Of course, if the proposed ward has capacity then he or she could hire a private attorney to fight the guardianship. If.
So what determines the need for a guardianship? The Estates Code requires that a guardianship cannot be granted unless the court finds the proposed ward is “an adult who, because of a physical or mental condition is 1) substantially unable to provide food, clothing or shelter for himself or herself; 2) care for the person’s own physical health; or 3) manage the person’s own financial affairs. The court must also find that there are no lesser restrictive alternatives, like a power of attorney or a trust, available to the proposed ward.
Some cases go smoothly with everyone working in the best interest of the ward. Other cases, however, turn into a pitched battle over capacity, adverse interests, guardian qualifications or less restrictive alternatives. These are contested guardianships and may include allegations of theft, exploitation, neglect and abuse of the proposed ward. The Judge may just remove the ward from the home and appoint independent guardians.
That is the stuff of which nightmares are made.
Virginia Hammerle is a Texas attorney whose practice includes estate planning, guardianship and probate. Sign up for her newsletter at firstname.lastname@example.org. Contact Hammerle Finley Law Firm to schedule a consultation at hammerle.com.
This column does not constitute legal advice.