CARE OF THE ELDERLY LOVED ONE – IS GUARDIANSHIP AN OPTION?

What about applying for guardianship of your elderly loved one. Is it a good idea, or not? Is it difficult? Can it be of benefit? All of these are valid questions nowadays, and deserve some thoughtful answers. The bottom line is that there must be a mechanism to allow family members to care for the needs of the loved one….be it the easy way, through powers of attorney, or the more complicated way, through guardianship. Sometimes there is no choice if the loved one no longer has the capacity to care for himself.

In Texas, a valid Durable Power of Attorney, combined with a Medical Power of Attorney, can act in place of a guardianship.

Here is how that works: a person may designate a trustworthy individual as their agent to handle financial matters, through the Durable Power of Attorney. Similarly, a person may designate a trustworthy individual as their agent to handle personal and medical issues, through the Medical Power of Attorney. In both cases, the principal, who is the loved one, chooses who the agent should be, and when he or she can act on their behalf. Of course, the choosing must be done while the loved one has the mental capacity to do so. If the loved one is considered incompetent, or mentally incapacitated, these powers of attorneys cannot be done.

If the capacity of the loved one is compromised, and there are no powers of attorney, frequently the only option is to file for guardianship. The process is designed to be carefully done, so that no individual is placed under guardianship without good and valid reasons. Because of our concern over removing the rights of an individual, our courts are required to approve and then supervise the guardianship process and an attorney needs to be involved.

The process of obtaining the right to make decisions on financial matters is included in the application to become the Guardian of the Estate. The process of obtaining the right to make decisions on personal care matters is included in the application to become the Guardian of the Person. The decision as to which area of guardianship is to be requested should be made prior to the application process, and it is possible to be Guardian of both the Person and Estate. Once the application is filed, the court will appoint an attorney ad litem, for the proposed Ward. This appointee has the duty of representing the proposed Ward at any hearing on the matter, and giving thoughtful support to the proposed Ward’s wishes. A court investigator may also be appointed to verify the status and condition of the proposed Ward and the applicant.

At the hearing, the court approves the application for guardianship, and awards letters of guardianship to the applicant. At this point, the appointed guardian is authorized to make decisions for the Ward, and supervise all areas of the Ward’s living arrangements and medical care.

The court continues supervision of the person and estate, and must be notified if the residence changes, or if a medical condition changes. Likewise, the guardian must request permission from the court for either the purchase or sale of items in the Ward’s estate.

A financial accounting is required annually from guardians of the estate; similarly a report on the well-being of the ward is required from the guardian of the person.

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