The role of guardian is an extremely important legal tool which ensures that the rights and interests of even the most vulnerable members of society are respected and protected. Guardians provide a means for minors, the mentally disabled, and the elderly to be represented in legal proceedings, and protect them from the need for institutionalization or aggressive state involvement.
However, as with many things, the benefits of guardianship also bring with them significant risks. By affording a third party legal responsibility over the financial affairs and decisions of another, guardianships are a vehicle for abuse of those who don’t know better, particularly the elderly.
As our population continues to age, elder abuse within guardianship cases is on the rise. While this does not mean that guardianships are no longer a useful or necessary legal tool, it does require that family members or loved ones close to an individual with a guardian pay close attention to how the guardianship is managed.
Under Texas law, guardians can be appointed for minors or incapacitated persons by the Texas courts. Guardians can be appointed to care for the person generally and/or to care for their property and estate. Thus, they may be asked to monitor an individual’s health and wellbeing, as well as to manage their financial affairs.
Courts supervise the guardianship of the minor or incapacitated person, but a guardian is given wide leeway to manage an individual and his or her estate. Courts will also monitor how a Guardian is managing the estate and will require an accounting from the guardian for how estate funds are used. Guardianships for elderly individuals are imposed because the individual is incapacitated and no longer able to represent himself or herself.
Having a guardianship established for an elderly individual is no easy task. Lawyers for the individuals seeking guardianship must show by clear and convincing evidence that an individual is incapacitated. They must provide documentation from a doctor regarding lack of capacity, and a court will appoint an attorney ad litem to represent the interests of the elderly individual and independently investigate incapacity.
Texas courts prefer to impose the fewest restraints possible on an elderly individual’s rights and freedoms, so if there is a less restrictive alternative available, such as appointing a limited power of attorney, this option may be taken before guardianship is imposed. One caveat; however, is that any less restrictive alternatives must also be feasible, meaning the alternative would actually work to protect the individual.
Guardians are considered to be fiduciaries, which means they have important legal responsibilities to the elderly individuals in their care, and that they will be held to the highest standards when managing an elderly individual’s estate. With this responsibility comes significant power over an elderly person – including power over their physical location, care control, protection of the elderly individual, the duty and power to oversee medical and legal decisions, and to make all financial decisions.
Given this broad range of authority, it is unsurprising that guardianships are prone to abuse. Indeed, the national media and national organizations throughout the country have repeatedly highlighted the prevalence of elder abuse in guardianships, and the likelihood that such abuse is even more rampant than the data suggests.
Elder abuse can take the form of neglect or failure to perform the duties and responsibilities imposed by a guardianship, such as the failure to make necessary medical appointments, provide adequate food and nutrition, or give the elderly individual a comfortable living space.
Elder abuse is also frequently financial and can involve unduly influencing the elderly individual into making changes to wills or other financial documents, or simply stealing from the elderly individual’s accounts.
If you suspect that an elderly friend or loved one is being abused by a guardian, it is important to report this conduct and your suspicions as soon as possible. Texas laws actually require Texas residents to report elder abuse when they believe that it is happening, including physical or emotional abuse, financial exploitation, neglect, or abandonment.
The Texas Adult Protective Services handles claims of elder abuse and even has an elder abuse hotline for those who wish to make a report. Individuals who report elder abuse to the state are immune from civil or criminal liability as long as they make the report in good faith. Additionally, Texas law keeps the identities of those who report anonymous.
If reported and investigated, elder abuse in Texas is considered a felony. Where a guardian commits willful harm against an elderly individual, he or she may be charged with a first degree felony. Where the harm is due to recklessness or poor decision-making, a second or third degree felony can be charged.
Guardians who engage in elder abuse can also be punished by the courts for failure to properly conduct their court-appointed duties, and face the possibility of civil lawsuits due to the breach of their fiduciary duties.
While these types of actions punish guardians who have already committed offenses, families and loved ones who hope to prevent elder abuse from ever occurring must be extra vigilant in their protection of elderly friends and family.
This often includes continuing to monitor an elderly individual’s mental and physical wellbeing for signs of neglect, emotional distress, or instability. To the extent possible, finances and financial circumstances should also be monitored if possible.
For many of our elderly loved ones, guardianship is necessary in order to deal with declining mental capacity that comes with old age, or to deal with conditions such as Alzheimer’s. Indeed, guardianship can be an extremely helpful legal role when used properly.
One of the ways to ensure success in the guardianship process and minimize the risk of elder abuse is to carefully and slowly proceed toward guardianship, making sure all necessary documentation and protections are in place, and that the individual appointed as guardian is best suited for the job. At Romano & Sumner, PLLC, our guardianship attorneys understand the risks and benefits of guardianship in Texas and can work with you to create a guardianship that will protect your loved ones while minimizing the risk of exploitation. We pride ourselves on serving Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.
Romano & Sumner, PLLC
