Aging is a unique process for everyone – we’ve all known people at 70 who are still training for triathlons, and we’ve all known people who are also 70 who are entering nursing homes because they are physically or mentally needing additional help. While 55 may be the age you can start getting senior discounts, and 65 may be the age where you can start getting Medicare benefits, there’s not a standard age where “elderly” adults become vulnerable.
However, most seniors will reach a point in their lives where they need extra care; many seniors will, sadly, reach a point in their lives where they are no longer able to make decisions on their own or care for themselves on their own, and need to be complete dependent on someone else to look out for them.
That may be when it’s time to enter a guardian into the picture. In the state of Texas, appointing guardianship is a frequent elder law step that families and caretakers of elderly adults need to take in order to ensure the best care for their loved one. Guardianship can be confusing, so here are some things that you should know about it before you move forward!
What is guardianship, and when is it necessary?
Guardianship is a legal designation that gives someone the legal authority to make decisions (personal, legal, medical, and financial) on behalf of another person in the other person’s best interests.
For example, if your elderly father develops dementia, he may not be able to manage his own affairs any longer. You can grocery shop for him and hire a house cleaner for him, but legally, you may not be able to access his bank accounts or get him the right medical care or do a host of other things you need to be able to do on his behalf. Making yourself his legal guardian would allow you to provide the highest quality care possible!
The tough part about guardianship is that it effectively takes away legal rights from the person and gives them to the guardian. Texas laws direct the court to, when possible, encourage the self-independence of the incapacitated person. According to Texas laws, guardianship should only be as restrictive as indicated by the person’s limitations and as is necessary to promote their well-being, but sometimes this involves depriving elderly adults the right to make fundamental decisions about their welfare, money, and lives. This can be difficult for both seniors (if and when they are able to understand) and their families to get past, but often, it is necessary.
How is it established?
In order to be appointed as your loved one’s legal guardian, you will need to file an application with the court of the Texas county in which your loved one resides. Your loved one will need to be served with this application, and other relatives or “interested persons” will need to be notified.
A doctor will need to evaluate your loved one to certify their incapacitation (for these are the grounds upon which guardianship will likely be granted) and an attorney ad litem will be appointed to represent your elderly loved one’s interest. You, your loved one (if they are able to), and the attorneys will attend a court hearing where all the evidence will be presented about why guardianship is necessary.
Typically, the court will want to know that alternatives were tried and that this is the best final option. An experienced elder law attorney who is familiar with guardianships can build and present strong case.
If guardianship is granted, you have to sign an agreement under oath, post a bond, and you will be issued “Letters of Guardianship” by the court that give you the legal right to take care of your elderly loved one.
Responsibilities of guardians
Essentially, as your loved one’s guardian, you have many legal duties that all boil down to taking great care of them! The court will officially delegate specific responsibilities to you, but these may include:
- Paying their bills and managing their money/assets wisely for their best interests (not your own gain)
- Ensuring their living situation is amenable
- Providing care, supervision, protection, clothing, food, medical care, and shelter
- And more.
You are not responsible, as a guardian, for:
- Any illegal actions that the ward (your elderly loved one) may commit
- Personally funding the ward’s living expenses or past debts – this may come out of their own estate.
- Personally supervising a ward around the clock (you can, and may need to, hire help for this or place them in a nursing home)
- Using force to make them take medication which they refuse to take
Particularly if the family or your loved one doesn’t feel ready to apply for guardianship, you do have other options! Designating a power of attorney can limit the authority that someone would have over managing your elderly loved one’s financial, medical, personal, or legal affairs. A trust could be established to protect their assets and allow for a trustee to manage them, without a guardianship being necessary. There is also something known as a supported decision-making agreement, which could allow for some rights to be shared between an elderly person and a would-be guardian.
Consult with an elder law attorney who can help you
Navigating guardianship, particularly the court processes and paperwork involved but also the emotional toll of it, can be extremely challenging. That’s why it is highly recommended to work with a compassionate local Texas lawyer who is experienced in guardianship matters and who can guide you and your family to the best solution.
Attorney Michelle E. Murphy has been helping seniors and their caretakers with guardianship for over 20 years. She knows Texas state laws and she will take the time to explain everything you need to know so you can make informed, confident decisions. She is committed to giving you peace of mind for the future! Call today to schedule a free consultation and discover your next steps.