At the Law Office of David S. Bouschor, II, we deal with difficult life decisions for the elderly and young or other incapacitated adults on a daily basis. One of the most difficult situations in which people find themselves is providing for the care of a family member who is in declining health and has become incapacitated, or in the case of the intellectually disabled, one who has never had the capacity to care for themselves. An adult guardianship is a legal process designed to protect an incapacitated person who is unable to manage their own affairs. When a guardianship is ordered it means that some or all of the person’s rights are removed. It is a process that is not to be taken lightly. The law regarding guardianship does provide for safeguards that are intended to assure that this process is not abused. Consequently, the process of getting a guardianship can be difficult and costly and will likely impact the incapacitated person’s assets and estate.
A Guardianship is usually necessary for one or more of the following reasons:
- Family caregivers do not have access to the finances of the person who is incapacitated and need access in order to pay bills and manage their assets.
- An incapacitated or person in decline can be vulnerable to exploitation or may become the victim of scams or sweepstakes. In these cases, a guardianship may become necessary to remove the right of the incapacitated person to enter into a contract. The elderly are often the target of unscrupulous sales representatives seeking to take advantage of the situation and make an easy sale.
- A person in declining health is often unable to recognize dangers to themselves and may refuse to receive appropriate care. Mentally impaired persons may cause fire hazards, may easily get lost when out of the home, can forget to take medications or even eat. These needs can be addressed by placing the individual in an elder care facility. However, a person cannot be involuntarily placed in a facility. If the incapacitated person is uncooperative or it is not practical to rely on assistance from friends and family, a guardianship may be the only answer, so that proceeding may be commenced to enable the incapacitated person to be relocated into an appropriate living arrangement.
- Amending or creating trusts sometimes necessitates a guardianship where the execution of a trust will allow certain tax or asset protection planning to take place. If such planning is warranted and not already in place when a person becomes incapacitated, then a guardian, after obtaining court authority, can create or amend trusts. The guardian will have to convince the court that such planning is in the best interest of the incapacitated person.
Alternatives, such as powers of attorney for handling money and property and advance directives for health care decisions are better ways to deal with these issues than guardianship, when possible. However, if the disabled person has not made those plans and documents before becoming disabled, there may be no choice except an application for the appointment of a guardian.
The Law Office of David S. Bouschor, II, can provide answers to the best method to pursue in order to protect the person and the family during the difficult times that may require a guardianship, or if appropriate, recommend and prepare the lesser restrictive options such Powers of Attorney and Physician’s Directives (Living Wills). The Law Office of David S. Bouschor, II, handles guardianship cases, powers of attorney, wills and probate cases in Denton County and throughout North Texas. For more information, please contact us at