Maneuvering Between a Rock and a Hard Place: Guardianship Issues for the Aged or Infirm

Families sometimes find themselves facing a true dilemma. The once-vibrant, energetic, clever matriarch or patriarch of the family is now only a shadow of his or her former existence. The person’s infirmity can be physical, mental, or both. Those who have been self-supporting and self-sufficient seldom see any decline in their mental or physical state. Rarely do they admit that they are no longer capable of managing their affairs. Loved ones find themselves between a rock and a hard place: Do they risk the potential pain and alienation that can come from a guardianship proceeding?

Guardianship is Not for the Faint-Hearted

As is the case in most states, in Texas, the appointment of a guardian is not an informal process; it requires court action since the result can significantly affect – sometimes even eliminate – the rights of the person in question. The court hears evidence as to the physical and mental state of the person in question. Family members generally have to testify as to the person’s day-to-day activities.

Where the need for a guardian is precipitated by poor decision-making on the part of the loved one, airing those facts in open court can be embarrassing. Sometimes, however, the person needs to be protected from himself or herself, although family members are sometimes surprised to find out that even with the guardianship ordered by the court, the guardian cannot completely insulate the ward from financial or physical danger.

Expert Medical Evidence is Required

In virtually all guardianship cases, the court will require a certificate of medical examination (CME) or a document establishing the person in question’s intellectual disability. If the proposed ward refuses to see a licensed physician, the court may order that he or she do so. The physician typically answers a series of question for the court related to the person’s mental and physical capabilities. Following the examination, the physician provides the court with his or her professional opinion as to the prospective ward’s legal capacity.

Different Types of Guardianships

Depending upon the circumstances of the case and the evidence presented, the court may appoint one of several types of guardians:

Guardian of the person, full or limited

A full guardian of the person has the legal right and the responsibility to make all personal decisions for the ward. Alternatively, the court may make the guardian responsible for deciding specific issues, such as what medical care the ward will receive, or where the ward will live, but the court may let the ward make his or her own decisions about getting married, voting, or driving. In a limited guardianship, the judge determines what decisions the ward can make and states the ward’s rights in the written guardianship orders.

Guardian of the estate, full or limited

A full guardian of the estate has the legal right and responsibility to handle all of the ward’s money and other financial affairs. The guardian is not, however, personally responsible for the ward’s debts. As in the case of a guardian of the person, the court can limit the responsibilities of the guardian if the court deems that advisable.

Guardian of the person and estate

The court can combine the guardianship, giving the guardian responsibility over both the person and the financial affairs of the ward.

Temporary guardianship

Finally, the court can grant temporary guardianship rights if the facts so warrant. This type of guardianship can address imminent danger that should, with action, resolve itself later.

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Guardianship Issues Are Complex and Usually Require Skilled Legal Counsel

Any family facing a potential guardianship should recognize that the issues could be complex. In almost every case, since one or more appearances before a judge are necessary, the family determines that it needs skilled legal counsel. The attorneys at Romano & Sumner, LLC have more than 20 years of combined experience providing expert legal assistance to clients. We represent clients in many types of transactions, including guardian proceedings. We know that each situation is unique. We can help you determine if a guardianship is the best answer or if some alternative might be better. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281-242-0995 or complete our online contact form.

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    Romano & Sumner, PLLC

    Romano & Sumner, PLLC