In our last column on guardianship, we introduced a discussion of adult guardianship by talking about temporary guardianship. Sometimes, that’s exactly what it sounds like-a person taking care of another person and his or her finances for a period of up to 60 days, as the person recovers from some sort of condition or situation that typically (but not always) leaves him or her incapacitated.
Permanent guardianship is a higher, harder threshold to achieve, and it’s used in situations in which a person and/or the person’s finances require a guardian’s involvement.
The process by which a person is determined in need of permanent guardianship includes a certified medical examiner determining if the person in question is indeed incapacitated. Once a guardian is assigned to the person who legally becomes what is referred to as a ward, that guardian is reviewed annually by the state to make sure he or she is caring for the ward and acting in the ward’s best interests.
Why is the process so involved? Because it’s a big deal to give an adult’s right to make his or her own decisions over to another person. It is, in fact, an inalienable right, and Texas is a state in which giving away that right won’t be done without following a proper process.
The process will involve an attorney ad litem acting on behalf of the person who will become the ward in the arrangement. It will be in your best interest, as the prospective guardian, to have an experienced family lawyer advocating on your behalf. There may be alternatives, such as assisted living programs and money management programs, which may serve the person you’re seeking a guardianship for much better than becoming your ward would.
It’s also important to know your rights and responsibilities as a guardian. For example, you won’t be expected to be responsible for your ward’s debts, but if your duties involve your ward’s finances, you’ll need to determine which bills are paid when and from which of your ward’s accounts.
Also, the arrangement you get at the outset could potentially be modified, or, if your ward regains his or her capacity, it’s possible to go through the restoration process to get the ward’s rights restored.
It’s also worth noting that sometimes incapacitation isn’t as cut and dried as you think it might be. In cases involving Alzheimer’s disease or dementia, a person can be confused at certain times of the day and lucid during others. In cases like these, our attorney will typically meet with the prospective guardian and ward during the morning and during the afternoon, in appointments several weeks apart. We simply need to have the information about their conditions, as gleaned in those visits, before we can determine whether or not it is an incapacitation meriting a permanent guardian.
The biggest determiner, of course, is if the person is a danger to himself or herself and to others. In those cases, it’s prudent to move forward to protect a prospective ward as well as the people he or she is regularly around. But even in those cases-which might seem straightforward-it can be incredibly complicated to determine whether not a person should become a ward. One should proceed with caution, as well as with a good lawyer, in taking on this noble but awesome responsibility.