Sep

10

2021

How to Set Up Guardianship For An Incapacitated Adult

Posted by: Adair Buckner

If you’re in a situation where you’re needing to seek guardianship for an adult loved one who has developed dementia or Alzheimer’s or for some other reason cannot conduct his or her own business or take care of him or herself, you’re already in a very stressful and highly emotional situation.

You should definitely seek the help of an attorney with knowledge of the guardianship procedure to assist you as you begin seeking guardianship of what the law calls “an incapacitated adult.”

Although the process can be overwhelming and complicated, here is a list of basic steps involved in creating a guardianship. Your attorney will be able to guide you through these steps.

1. Meet with an attorney to determine the type of guardianship needed to meet the needs of your loved one.

Hopefully, you are not in an emergency situation to gain control of their assets or make arrangements for their personal care. If that is the case, you would have to use temporary guardianship procedures. Those are slightly less complicated than what is involved in permanent guardianship, but many of the steps are the same.

Unfortunately, if the need for the guardianship continues, you may have to repeat a lot of the steps from the temporary guardianship to allow the guardianship to become permanent.

2. Obtain a doctor’s physical exam to determine the degree of incapacity.

It is essential to the process to have a medical doctor examine your loved one and answer a series of standard questions prepared to meet requirements for creating a guardianship under the Texas Estates Code.

The doctor will have to express his or her opinion on whether your loved one is capable of retaining some rights, or if they are totally incapacitated for all purposes. If your loved one is not totally incapacitated, the court may order limitations on the right of the guardian to act for your loved one.

3. Determine the person to serve as guardian.

The law allows for two different types of guardian. The guardian “of the person” means the individual who will provide for the actual care and maintenance of your loved one, such as nursing home care, medical treatment options, and the like.

The second guardian is “of the estate”, which means this person manages the assets and financial affairs of your loved one. One person may be suitable to serve in both roles or you may need two different people, with different skill sets, to properly meet your loved one’s needs.

The law sets out a list of persons the court would look to for appointment as guardian based on their relationship to the incapacitated person (“ward”). The first preference under the law generally would be a spouse, parent, or sibling.

The guardian cannot have been convicted of a felony or have a conflict of interest from owing money to the ward. There may be other reasons to bypass someone in the list of preferred guardians, with the main focus always being to protect the best interests of the ward.

4. File application for guardianship.

Once you have determined the appropriate person or persons to request being appointed as guardian of the person and of the estate of the ward, that person or persons should file an application with the probate court where the ward lives for his or her appointment. The doctor’s exam record must be filed with the application.

The application process also requires that the applicant request appointment of an attorney ad litem to represent and protect the interests of the ward.

5. Serve the ward and specified relatives with notice of the application.

The probate court clerk must issue a citation to be served on the ward, whether he or she will have any recognition they are being served or not. Other interested parties with significant relationships to the ward must also be served with citation, or waive service of citation on them. This again is to protect the interests of the ward.

Unfortunately, sometimes this also sets up family feuds, particularly between siblings, over who should be granted guardianship over the ward. This is a necessary evil of the process. A person with a legitimate interest in the proceedings can challenge the applicant’s appropriateness to serve as guardian, and apply on their own to be appointed. The court then must determine the best interest of the ward.

6. Have an attorney ad litem appointed to represent the interests of the ward.

As stated above, your attorney will follow up with seeing that the attorney ad litem has been appointed. Your attorney must provide the attorney ad litem with the application, the medical exam report, and any other information the attorney ad litem deems relevant to determining whether the appointment of that applicant is in the ward’s best interest.

The attorney ad litem can have full access to the ward’s medical records for further review if he or she feels necessary. He or she also should meet with the ward, if possible, even though the ward may not even be able to interact with him or her. The attorney ad litem can interview other family members also.

7. Attend a hearing for appointment of guardian.

Once the attorney ad litem is satisfied he or she has had the full opportunity to gather and evaluate the relevant information, the applicant’s attorney can schedule a hearing. Those persons who were served with citations should be notified of the hearing unless they waive that right.

The ward also has a right to be present at the hearing if he or she chooses. However, the attorney ad litem can advise the court if he or she deems it would be harmful to the ward to appear at the hearing.

The judge takes the recommendation of the attorney ad litem as to the appropriateness of appointment of the applicant as guardian for the person, estate, or both at the hearing. The judge does not necessarily have to accept the recommendation.

The judge will determine whether the application should be granted, and if more than one person has applied to be appointed guardian, who should be appointed. The judge may also provide for a “limited guardianship”, reserving some rights to the ward to act for him or herself.

8. Post bond for guardianship of the estate of the ward.

The judge will also set a bond for the person serving as guardian of the estate to safeguard against improper use or grossly negligent investment or management of the assets. The applicant then must find an insurance company that will issue a bond in the amount set by the court.

This usually involves the applicant furnishing financial information to the insurance company to justify its issuance of the bond. Unfortunately, not everyone can qualify for a bond. I have had several applicants who were not able to qualify, and that’s a bitter pill to swallow.

In that case, another applicant may be required and the process has to begin all over. Heads up, it may be good at the very start of the guardianship process to ensure that the applicant for guardian of the estate can qualify for a bond.

9. Sign oath as guardian.

At the conclusion of the hearing, you will be required to sign an oath to serve as guardian, which will be filed with the probate clerk’s office. This is one of the last steps, along with getting your bond approved by the judge, before you become the guardian officially.

10. Obtain letters of guardianship from the clerk.

Congratulations! You have finally made it to the finish line. Once the oath and bond have been filed, the probate clerk will issue letters of guardianship for the person, estate, or both depending on the capacity in which you were appointed to serve.

You will need the letters of guardianship to present to third parties as evidence of your authority to act on behalf of the ward. If you need additional letters as the guardianship proceeds, they can easily be obtained from the clerk’s office and currently only cost two dollars per letter.

If you are in need of a guardianship or need help putting in place a simple solution before a guardianship is necessary, call Adair M. Buckner at (806) 220-0150, or click the button below to schedule a free initial consultation.

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