Appendix L:
Guardianship

Guardianship

When an adult is unable to manage his or her own affairs, a court may appoint a guardian to make personal or property decisions on behalf of that person (or ìwardî). A guardianís duty is to protect the ward and his or her estate from abuse, exploitation, and neglect.

All states have guardianship laws to protect citizens who are unable to make personal or property decisions for themselves. Unless a person has made contingency arrangements prior to becoming incapacitated, the state uses these laws to designate someone to take charge of a wardís affairs. Guardianship involves a long, complex proceeding in court, however, and is usually more expensive and time-consuming than voluntary contingency plans such as a durable or springing power of attorney or a living trust.

Guardians often make the following type of decisions on behalf of a ward:

• Deciding where the ward should live;
• Making medical decisions for the ward;
• Deciding how the money of the ward will be spent;
• Deciding who can and cannot visit the ward;
• Making sure that the ward has proper food, clothing, medical care and shelter; and
• Applying for services that the ward may be eligible for and ensuring that those services are administered properly.

The relationship of the guardian to the ward is much like that of parent to child. Because stripping an adult of independence is a significant matter, the process of obtaining court appointment as a guardian necessarily involves some time and money. The first step is a petition to the court by someone asking to be appointed. In some areas, the court clerkís office has blank forms and instructions.

Next, the court must make an inquiry into the necessity of guardianship. If the court finds that an adult child who is taking care of a parent seeks legal guardianship merely to make his or her task more convenient, guardianship probably would not be awarded if the parent were to object. As a safeguard, most courts will appoint an attorney to represent the supposedly incapacitated or disabled person.

The court will generally require a hearing, at which medical or mental health professionals must presented some kind of evaluation of the disabled person. Often, the petitioner seeking guardianship must make arrangements and pay for the examinations and reports.

Although few people think about it before the need arises, itís best to choose a possible guardian for oneself while in good health. In most states, a person can sign a declaration of guardian that allows him or herówhile still in sound physical and mental healthóto name a guardian if need arises in the future. To make such a declaration, the person must be competent and over the age of 18. The document must be signed and witnessed by two people other than the designated guardian. The declaration must be notarized, and must have a ìself-proving affidavitî briefly stating your intentions.

For further information, the best resource is the local probate court in the county where the proposed ward resides. The Texas Attorney Generalís Office has an Elder Law section to assist Texas seniors, which can be accessed by Internet on the World Wide Web at http://www.oag.state.tx.us/website/consumer/eldehelp.htm. Adult Protective Services can provide information via its toll-free phone line, 1-800-252-5400. There is also a Legal Hotline for Older Texans: 477-3950 in Austin, or 1-800-622-2520 from elsewhere in Texas.

References

Lukens, Ralph D. 1992. "Good Judge: Good Guardian Bad Judge: Bad Guardian," Probate Law Journal, vol. 12.

Stewart, C. Jean, Kathy L. Seidel, and Elizabeth J. Bedient. 1991. "Disability Planning: Powers of Attorney; Living Wills; Right to Refuse Medical Treatment; Medical Directives and Other Alternatives," American Law Institute-American Bar Association Course of Study (597 ALI-ABA 445): Basic Estate and Gift Taxation and Planning (February 13).