Are you considering a guardianship for someone who may be having trouble caring for their own needs? In certain situations, alternatives to guardianship are the best and most cost-effective solutions to help someone who cannot help themselves. These alternatives include power of attorney, supported decision king agreements, management trusts, and non-legal solutions involving psychological help and family care.
Even if someone is being abused, neglected or exploited, they may not need a guardian. A complaint can be made to Adult Protective Services at 1-800-252-5400.
If the person is in a nursing home or other facility, a complaint can be made to the Texas Department of Health and Human Services at 1-800-458-9858. If the person is in a facility and their rights are not being respected, a complaint can be made to the Texas Long-Term Care Ombudsman at 1-800-252-2412.
If the alternatives don’t work, even with supports and services, it may be necessary for someone to be placed under a guardianship.
Every guardianship application must be accompanied by a Physician’s Certificate of Medical Examination. This should be completed by neurologist or psychiatrist and, ideally, by someone who knows the person well. If the person will not agree to see a doctor, the Approved Guardianship Attorney can apply for an Independent Medical Examination.
If you do not want to be the guardian but think that a guardian is needed, you can ask the probate court to look into the matter by sending a Court-Initiated Guardianship Information Letter.
If the person does need a guardian, the application must be brought by an Approved Guardianship Attorney. Some probate and county courts have lists. There is also a list on the State Bar of Texas website.
While an Approved Guardianship Attorney may only be registered in one county, many practice in surrounding counties as well. Texas also requires a JBCC registration which can be found here. (http://www.txcourts.gov/jbcc)
We’re glad to help you better understand your options for guardianship or a different solution for someone who cannot care for themselves. We have deep experience in these matters and can help you navigate these legal waters. Give us a call to schedule an appointment today at 817-638-9016.
Types of Guardianship
Guardianship of the Person
Guardianship of the person is often sought when a person with an intellectual or developmental disability turns 18 or when a person with dementia refuses to stay in a memory care facility or nursing home. In the case of a person with intellectual or developmental disabilities “aging out” or turning 18, Texas law requires evidence of a need for guardianship. A small bond is required.
This solution may allow the guardian to decide:
- where the person lives or works
- who they marry
- application for a mental health detention (with immediate notice to the probate court)
- the right to vote is usually preserved, but not the right to carry a gun
Guardianship of the Estate
Guardianship of the estate (also called, “conservatorship”) may be needed when the person has more than Social Security in income or a lot of assets but can no longer manage their finances and does not have an agent under a Durable Power of Attorney or has an untrustworthy agent.
If the person only receives Social Security benefits, someone may be appointed their representative payee, avoiding the expense and trouble of guardianship. A bond is required based on the person’s yearly income and total assets. Every year a guardian of the estate must present a sworn accounting, complete with receipts.