Celebrities like Jay Leno and Emma Hemming Willis (married to Bruce Willis) are speaking out about their experiences with guardianship and caregiving.
If you are caring for a family member with dementia too, a time will likely come when your loved one can no longer make decisions independently. At that point, the person with dementia will need a guardian or other support in managing their affairs.
Who Is Legally Responsible for a Person With Dementia?
Under Texas law, adults are legally responsible for themselves unless they are incapacitated. Incapacitated means that “because of a physical or mental condition, [the person] is substantially unable to:
- Provide food, clothing, or shelter for himself or herself; or
- Care for the person's own physical health; or
- Manage the person's own financial affairs.”
Not everyone with dementia is incapacitated. Early in the disease, a person might be able to manage their own affairs. As the disease progresses, the person might become incapacitated in some areas, like financial affairs, but retain their capacity in other areas.
When a person becomes incapacitated, a court may appoint a guardian to make decisions for the incapacitated person.
What Is Guardianship?
Guardianship is a legal relationship in which a person (the “guardian”) is appointed by a court to make decisions on behalf of another adult (the “ward”). There are four kinds of adult guardianship:
- Guardian of the person (makes decisions about personal and medical affairs)
- Guardian of the estate (makes decisions about financial affairs)
- Guardian of the person and the estate (makes decisions about all affairs)
- Temporary guardianship
Guardianship can be full or limited. For example, a limited guardian of the estate might be allowed to pay the ward’s utility bills, but not to buy or sell property on behalf of the ward.
What Are The Steps For Guardianship In Texas?
To become a guardian, you must go through a legal process:
- Consult an attorney. Guardianship is a complex legal matter, and it's advisable to have an attorney guide you through the process. Your attorney cannot represent the proposed ward (the person needing a guardian) in court, but they can represent you (the petitioner) and ensure everything is done correctly.
- File an application. Your attorney will file an application for guardianship with the appropriate court in the county where the proposed ward resides.
- Medical Evaluation: The court will require a medical evaluation from a licensed physician or psychologist. This document should detail the nature and extent of the proposed ward's incapacity due to dementia and evaluate their decision-making ability. All Texas courts have a prescribed form for this document called a “Physician Certificate of Medical Examination” that must be used.
- Serve Notice: The proposed ward must be personally served with the application. Other interested persons, such as close relatives, may also need to be served notice of the guardianship case. Your attorney can counsel you on the specific legal requirements.
- Appoint Attorney Ad Litem: The court is required appoint an attorney ad litem to represent the proposed ward's interests in the proceedings. The attorney ad litem is required under Texas law because the proposed ward is entitled to have their interest represented in the proceeding, and it would be a conflict of interest for the applicant’s attorney to also represent the proposed ward.
- Hearing: A hearing will be held where you, the proposed ward (if able), and your attorney will present evidence to the judge. The judge will review evidence, like medical records and testimony, to decide if the person with dementia is incapacitated and determine if guardianship is necessary and, if so, the extent of the guardian's authority.
- Guardianship Order: If appointed as guardian, you'll need to take an oath to perform your duties and post a bond with the court. Once these requirements are met, the court will issue "Letters of Guardianship" officially granting you guardianship authority.
Once a guardianship is created, only a court can alter or terminate it.
Who Can Be a Guardian?
In Texas, priority is given to appointing someone as a guardian who:
- Has a close relationship to the proposed ward – such as a spouse, parent, adult children, or other close relatives; and
- Someone qualified to handle the ward's affairs. This means they are responsible, have good judgment, and are able to meet the ward's specific needs.
If there are no suitable family members available, the court may appoint a professional guardian, who is a licensed individual or agency qualified to handle guardianship responsibilities. This is typically used as a last resort.
What Are the Responsibilities of Being a Guardian in Texas?
Being a guardian is a major responsibility. Before taking on the role, weigh the responsibilities against your ability and willingness to handle them.
A guardian must meet the legal responsibilities established by the court, which may include:
- Paying the ward’s bills and filing tax returns
- Managing the ward’s assets
- Ensuring the ward has access to proper housing, food, clothing, and medical care
- Filing annual reports or accountings with the probate court. In some cases, the court may require an initial inventory and appraisal of the ward's estate to establish a baseline for financial management.
- Attending court hearings. Guardianship is periodically reviewed by the court. The guardian is required to attend these hearings and provide updates on the ward's condition and the management of their estate.
- Adhering to the limitations and requirements set forth by the court
If you are appointed guardian – or considering serving as guardian – for someone in Texas, it's crucial to understand your duties. Consult with an attorney if you have any questions about your role or responsibilities.
What Are Alternatives to Guardianship in Texas?
Guardianship takes away a person’s right to make decisions for themselves. Whenever possible, you should explore less restrictive alternatives first.
Alternatives to guardianship include:
Informal options, like establishing a joint bank account with your family member can also be an effective alternative.
If possible, talk to your family member or loved one with dementia about their wishes. If the disease has not yet affected their decision-making abilities, work with an attorney to discuss alternatives to guardianship together, such as medical or durable power of attorney or a joint bank account.
You and your loved one may also consider selecting a guardian in advance by signing a Designation of Guardian. This is a legal document that allows your loved one to name the person they prefer to become their guardian should they become incapacitated.
When Should I Seek Guardianship?
When your family member cannot independently manage personal needs, medical needs, or finances without support due to a mental or physical disability, it may be time to seek guardianship.
Consider these questions when determining if guardianship is the right course of action:
- Is your loved one paying bills late?
- Are they at risk of scams or financial exploitation?
- Do they understand their medical condition?
- Are they able to manage their own prescription medications?
- Are they neglecting their health?
- Is the person at risk of wandering, getting lost, or falling?
- Do they need assistance with basic needs like bathing, dressing, or preparing meals?
A limited guardianship or guardianship alternatives may be appropriate if your loved one still has some capacity in one or more areas. A probate and guardianship attorney can provide valuable guidance in navigating this complex situation.
Do I Need an Attorney to Get Guardianship of an Adult With Dementia?
In Texas, you are not legally required to have an attorney to file for guardianship of an adult with dementia. However, it is strongly recommended.
Guardianship is a complex legal procedure with specific requirements and timelines. An attorney experienced with guardianship and probate law can guide you through each step, ensuring everything is done correctly and according to the law.
