When we think of the need for our loved ones to have a guardian put in place to attend to legal and administrative needs, we typically think of either very young children or older adults with dementia issues. Young children sometimes need guardians while they are minors, while guardians are also often imposed on elderly parents who can no longer take care of themselves.
We infrequently think of otherwise healthy, middle aged adults as needing a guardian to look over them. And yet, sometimes that need does arise. When loved ones are subjected to a serious injury – such as traumatic brain injury (TBI) – they may lose the ability to make rational decisions or to take care of their own affairs. At times like this, they need assistance from a third party.
When this happens in otherwise healthy adults, the question of whether to seek a guardianship is a very delicate one, as it infringes on our basic understandings of civil rights and personal liberties. It can be scary to think of taking decision-making freedom away from our loved ones and placing it into the hands of another, yet sometimes this is necessary to protect their best interests.
Guardianship allows another individual such as a spouse, parent, or close friend to take over primary decision-making for an individual who is temporarily, or permanently incapable of doing so him or herself. While we often think of guardians as someone who controls the money, the actual responsibility is far more broad.
Guardians handle important decision making related to:
When dealing with the need for urgent medical treatment, or attempting to restructure life around an event such as a TBI – guardianship can be necessary simply to get things done. For example, perhaps your husband is the primary name on utility accounts, bills, and your bank accounts. If he becomes incapacitated due to a brain injury, guardianship may become necessary simply to access these daily functions.
Guardianship can also help to ensure that your loved ones are not taken advantage of by unscrupulous individuals. When a family member with TBI struggles with the inability to fully process information or make decisions, he or she can be susceptible to fraud or scams without the help of a guardian.
In Texas, guardianship is not a solution to your frustration with your loved one’s delays, or slower than normal cognitive understanding. Where a person is capable of taking care of themselves or managing their own property, but must do so in a slower and more deliberate manner due to TBI, guardianship usually is not necessary.
Instead, guardianship is reserved for those individuals with such a significant lingering injury that they are considered to be “incapacitated persons.” Under Texas law, an incapacitated person is one who:
The standard is strict and rightfully so. Guardianships should not be used to deprive individuals of their basic civil rights – just to make other’s lives easier. Courts in Texas, and throughout the country, are very reluctant to take away an individual’s freedoms unless absolutely necessary. That means that guardianships are only granted when needed to protect the infirm person and ensure that their affairs are properly handled.
Indeed, in borderline cases, courts may require expert testimony and the opinions of treating physicians in order to determine whether an individual with TBI truly needs to have a guardian appointed.
Assuming you have a loved one with a TBI who is truly incapacitated and needs the assistance of a guardian, the first step is to file a petition for guardianship with your local court. Texas law has very specific procedures for what is required for a petition, including what constitutes proof of incapacitation beyond a reasonable doubt. And in many instances, Texas courts require petitions to be filed by attorneys.
If an examination has been done by a medical professional to establish incapacitation, this must have been done within 120 days of filing the petition.
The petition must detail the incapacity that exists, what type of help is needed, and any limitations that should be imposed on the rights of the guardian. Particularly for otherwise healthy adults, the petition must clearly explain what happened to lead to the need for a guardian, and how long it is anticipated that guardianship will be needed.
After the petition is filed, the court will appoint an attorney ad litem to represent the alleged incapacitated person. The attorney ad litem will meet with the person, any family members, and any other necessary individuals. A hearing will then be held before the court to make a final decision on incapacity.
If the court finds partial incapacity, a guardian can be appointed with limited powers to assist the incapacitated individual. If the court finds full incapacity, then a guardian may be appointed to handle all of the affairs of an individual with a TBI. An initial appointment of guardianship is good for 16 months, but may be renewed upon filing of a status report with the court.
If you have a loved one who has recently suffered from a TBI and you are concerned about their ability to fully handle their personal and financial affairs, you may want to speak with an experienced attorney about the prospect for the appointment of a guardian. While guardianship is by no means assured, it may be an avenue worth pursuing to protect those you love.
At Romano & Sumner, LLC, our guardianship attorneys are available to discuss any questions you have about the practicalities of guardianship, how guardians are appointed, and what impact they may have on your loved one’s life and decision-making. We pride ourselves on serving Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.
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