Tuesday, January 29, 2019

Guardianships, who, why, and a little update

Image result for guardianshipCaller: "I need to get a guardianship"

Me:  "Can you tell me why?"

Caller: "Well, I need to get control of my _____"

Stop right there. That's not a why, because you haven't told me why that person needs a guardianship, why it would be in their best interest, and what else you have done to prevent the necessity of one.

That's ok, we can sort that out.

HARD TRUTH #1: You can't take a guardianship out on someone who has capacity, who doesn't want to consent to it.

Ex: "I have to get help for my (insert family member or friend). They are (insert risky behavior) and I'm worried they are going to end up in jail or worse."

Sadly, there is not a guardianship or other legal procedure to help someone who doesn't want to be helped, not unless they have a diagnosed medical issue or they have broken the law.

Ok, now that is out of the way, who is guardianship for? The Texas Estates Code dictates the rules for guardianships, and they are complex, as a guardianship is a harsh remedy to an underlying problem. Like a  power of attorney, you get to act on behalf of someone, financially or medically. Unlike a power of attorney, it requires a lawsuit, its really expensive, and it can potentially take away the ward's (the person whom the guardianship is taken) rights to make any decisions for themselves.

HARD TRUTH #2: Those who really need a guardianship can't always get one, and those who don't deserve them, sometimes get one. 

Ex: "I have a special needs child who just turned 18, and I need to have guardianship to help them apply for benefits. "

If you wait til after your child turns 18, this can be a pickle. PRO TIP- don't wait. Same example as above, a family member wishes to save another from themselves, but they won't agree. Can't do it.

The classic scenario is you have a pressing medical or business decision that requires a person's authority, but they do not have the capacity to grant that decision. Ok, you need a guardianship, what do you do?

You need a lawyer, a doctor's report, and sufficient information for all the ward's family members. The filing fee is higher than other proceedings, they court MUST appoint a neutral ad litem attorney (Add $1000+ to your costs), and then you have to get everyone served. If all the family and others agree, you can estimate costs at several thousand dollars. If someone fights or contests, triple it, and then some.

Once you have a guardian, there are strict requirements for accountings that must be met and add to the cost.

TAKE AWAY:  A guardianship can be a necessary evil, but they are difficult and expensive. If you need one, plan accordingly. If you don't, be thankful.