Guardianship is the legal process by which a court determines that a person is mentally unable to make his or her own personal decisions (they are "incapacitated"). If such a determination is made, the Court appoints a Guardian to make decisions for that incapacitated person. An “incapacitated” person is defined as an individual who, because of a mental condition, is substantially unable to provide for his or her own food, clothing, or shelter, to care for his or her own physical health, or to manage his or her own finances.
A Guardian has a lot of power. Letters of Guardianship are like a power of attorney, but instead of being signed by an individual, they have the power of a Court order behind them. A guardian typically has the power to direct the Ward's medical treatment. So, if a Proposed Ward is refusing medical treatment, a Guardian can freely obtain medical information and authorize treatment. If a Proposed Ward is refusing in-home care, a Guardian can arrange for and pay for such care with the Ward's assets. If a Proposed Ward is refusing to go to a memory care center, a Guardian can move the Ward to a facility that is equipped to deal with the unique challenges presented by a dementia patient. If a Proposed Ward is being exploited financially, a Guardian can take control over all of the Ward's finances and stop the flow of money out of the Ward's estate. If the Proposed Ward has property that is wasting away, a Guardian can sell the property and use the proceeds to care for the Ward or use the Ward's assets to maintain the property. However, a Guardian is a fiduciary, meaning that the Guardian has a duty to use the assets of the Ward for the sole benefit of the Ward.
How do you get a guardianship?
Step 1. Obtain a certificate from a physician detailing the nature of the incapacity
Because guardianships are reserved for incapacitated people, the person filing the Application for Guardianship (the "Applicant") must provide evidence to the court that the senior (the "Proposed Ward") is incapacitated. The primary method of proof is the submission of a certificate from the Proposed Ward's physician. The courts have created a certificate that is required in all guardianships filed in the state of Texas. The certificate is called a Physician's Certificate of Medical Examination or "PCME". The PCME must be completed by an M.D. or a D.O., and must be based on the physician's findings during an examination occurring within 120 days of the filing for guardianship. The PCME states the nature and degree of the Proposed Ward's incapacity and the specific areas of protection and assistance required.
Sometimes it is not possible to get a PCME because the Proposed Ward will not voluntarily participate in a neurological evaluation. The Proposed Ward's physician may also cite medical privacy laws ("HIPAA") and refuse to disclose the Proposed Ward's medical condition to the Applicant. In these situations an Application for Guardianship can be filed without a PCME. The Applicant can then ask the Court to order the Proposed Ward to participate in an Independent Medical Exam or "IME".
Step 2. File an Application for Guardianship
The proceeding seeking the appointment of a Guardian begins with the filing of a written Application for Guardianship in the county court having jurisdiction over the Proposed Ward. Jurisdiction lies wherever the Proposed Ward can be served. Any person not having an interest adverse to the Proposed Ward, has the right to commence a Guardianship proceeding. The Proposed Ward's family, however, has priority to serve as Guardian.
The Application must meet certain requirements as set out in the Texas Estates Code. For example, the Application must state relevant facts about the Proposed Ward and the nature and degree of the Proposed Ward's alleged incapacity. Because Guardianship is such an important matter, the Texas Estates Code requires that the Proposed Ward and his or her immediate family all receive notice of the Application before the hearing can occur. Therefore, the Proposed Ward's familial relationships must also be set out in the Application. If the situation is dire, the Application must also set out the "imminent danger" to the Proposed Ward's person or estate.
Step 3. Complete the Application for Bond (sometimes)
If the Proposed Ward has a significant amount of assets, a "Guardianship of the Estate" will also be required. Usually the probate court will require a Guardianship of the Estate if the Proposed Ward has more than $10,000.00 in assets or annual income (not counting Social Security). When establishing a Guardianship of the Estate, the judge will require the Guardian to post a corporate surety bond from an insurance company in an amount equal to the value of the assets in the estate, not including real property. Before attempting to obtain a Guardianship of the Estate, it is a good idea to pre-qualify the Applicant with a bond company to ensure that the Applicant will be able to post the required bond. In determining whether to issue a bond, the bond company will usually run a credit check on the Applicant.
Step 4. Complete the Notice Requirements of the Texas Estates Code
Once the Application is filed, the law requires certain individuals to receive legal notice of the filing. For example, the Proposed Ward must be personally served with a copy of the Application. This is usually done by a sheriff or process server. The Applicant must also send a copy of the Application to the members of the Proposed Ward's immediate family (spouse, children, parents, and siblings), unless they waive service. The attorney will ask the Applicant to get a form signed by each of the family members that are in agreement with the guardianship. The attorney will have uncooperative family members served via process server or certified mail. Finally, if the Proposed Ward lives in a facility, the attorney must serve the administrator of the facility by certified mail.
Step 5. Assign a Court Investigator to visit the Proposed Ward and file a Report
Whenever an Application for Guardianship is filed, larger counties often require a Court Investigator to investigate the circumstances alleged in the Application to determine whether the Proposed Ward appears incapacitated, whether the Applicant is qualified to serve as guardian, and whether there is a "less restrictive alternative" to Guardianship. Smaller counties do not generally have Court Investigators. If done, the Court Investigator will file a report of his or her findings with the court.
Step 6. The Proposed Ward visits with an Attorney Ad Litem
Once the probate court receives the Court Investigator's report, the court will appoint an attorney ad litem to represent the interests of the Proposed Ward. The attorney ad litem will meet with the Proposed Ward and attempt to inform the Proposed Ward about the Application for Guardianship and advise the Proposed Ward of his or her legal options. Therefore, it is a good idea to have a conversation with the Proposed Ward about your reasons for pursuing the guardianship so that it is not a surprise. The attorney ad litem will advocate in accordance with the Proposed Ward's directions in regards to the guardianship. After meeting with the Proposed Ward, the attorney ad litem will usually file an Answer that generally denies the allegations in the Application for Guardianship and asks that the Applicant prove his or her case to the court. Do not expect the attorney ad litem to help your attorney with his or her case.
Step 7. Hold a hearing before the Judge
Once the attorney ad litem has filed an Answer, a hearing will take place before a judge. The Applicant will give testimony in support of the allegations stated in the Application for Guardianship. The attorney ad litem will then ask the Applicant a series of questions to confirm that Guardianship is in the best interests of the Proposed Ward. If the Application is uncontested, the hearing is usually very informal and takes less than 30 minutes to complete.
If the judge agrees that a Guardianship is required and that the Applicant should be named Guardian, then the judge will issue an order to this effect and will direct the probate court clerk to issue “Letters of Guardianship” to the Applicant. These Letters and the Order are the authority you need to act on behalf of the Ward (no longer the "Proposed Ward" at this point). The judge will also set a bond amount to ensure that the Applicant fulfills his or her duties as Guardian.
Step 8. Qualify as Guardian
In order to qualify the Applicant as Guardian, the Applicant must satisfy the bond requirement and take an oath to faithfully discharge the duties of Guardian. The bond requirement may be in the form of a written promise to pay, may be a cash amount of $100, or may require the Guardian to obtain a "surety bond" from an insurance company in the amount of the assets of the estate (not including real property).
How much does guardianship cost? ($350/hr for attorney, $125/hr for legal assistant)
There is no way to estimate how much time an attorney will need to spend on a Guardianship proceedings. Thus, this type of case does not qualify for a flat fee. The amount of dissension among family members, including the proposed Ward, will greatly affect the fee.