Prerequisites to Guardianships

A guardianship is created by statute in Texas. (Some states refer to these as conservatorships.) Used when either a minor or an incapacitated person cannot make or communicate safe or sound decisions about his person or his property, a guardianship is created to promote and protect the well-being of an incapacitated person. The minor or incapacitatedperson may also be susceptible to fraud or undue influence. Before a Texas judge can establish a guardianship for a person or the estate, however, two critical issues must be determined.

The first issue is whether the person is incapacitated. The second issue the judge must consider is the feasibility of alternatives to a guardianship. In this blogpost, I want to examine each issue from the judge’s point of view.

Is the Person Incapacitated?

What makes a person incapacitated? Incapacitated people fall into one of two large categories. The first large category is a minor. A minor is an incapacitated person by definition. A minor is anyone who is under the age of 18, who has never been married, or has never had the disabilities of a minor removed by a judge. The second large category of incapacitated people arethose who, because of a physical or mental condition, are substantially unable (i) to provide food, clothing, or shelter for himself or herself, or (ii) to care for the person’s own physical health, or (iii) to manage the person’s own financial or business affairs.

Who makes the call as to whether a person is incapacitated? Ultimately, a judge must makethe determination as to whether a person is incapacitated. The judge hears from many witnesses and receives many documents to help the judge make that ultimate determination. To begin with, a Texas-licensed doctor or psychologist must examine the person and certify to the judge the levelof the person’s incapacity: is the person totally incapacitated? Is the person partially incapacitated? Is the person’s ability to care for him or herself likely to improve over time? The letter or certification must include a description of the nature, degree, and severity of the proposed ward’s incapacity. The examination of the proposed ward must occur no more than 120 days before the date of the application for guardianship.

In addition to the physician’s or the psychologist’s certification or letter, the judge would likely hear from a host of other people who know the proposed ward. The ward’s spouse, significant other, family members, extended family members, friends, neighbors, family doctor, bankers, business partners, co-workers, supervisors, teachers, and associates from walks of life whose testimony may assist the judge. The judge must decide (a) whether a person is able or unable to handle the many decisions for herself, and (b) whether the person may do so with, or without, assistance. Interestingly, the judge will even listen to the proposed ward. But the question often arises whether the proposed ward has the capacity to understand the oath of a witness.

The determination of incapacity must be based on clear and convincing evidence of recurring acts or occurrences within the six-month period of time preceding the application for guardianship. Isolated instances of negligence or bad judgment by the person will not cause the creation of a guardianship.

Consider the following bits of evidence in determining whether this 22- year old woman is incapacitated and whether a guardianship might protect her.

• She reads and writes at a third-grade level, has limited fine-motor skills, and functions socially like a ten- or twelve-year-old;
• Her conversation is limited and difficult to understand;
• She uses a phone app to help communicate using pictures;
• She can use her smart phone to text her mother and send her pictures;
• She cannot name her medications and does not know who her physician is;
• She can microwave food for herself but cannot use the stove (and sometimes forgets to turn it off if she does use it);
• She can bathe, clothe, and toilet by herself;
• She has a tendency to nod her head and agree with whatever is said to her without understanding what she is being asked;
• She does not understand most documents or the consequences of her decisions; and
• She does not understand the concept of a guardianship when it is explained to her.

Most judges would say the woman is at least partially incapacitated and that a guardianship would be appropriate to protect her. But are there any alternatives to guardianship that might protect her and permit her to retain some of her rights and freedom?

Evaluating Alternatives to Guardianships

The second issue the judge must consider is the feasibility of alternatives to a guardianship. The judge is encouraged by statute to foster and promote the development or maintenance of maximum self-reliance and independence in the incapacitated person. To accomplish these objectives, the judge must evaluate alternatives to a guardianship and consider supports and services available to the proposed ward that would avoid the need for a guardian’s appointment.

Supports and services means formal or informal resources and forms of assistance that enable an individual to:

1. Meet the individual’s needs for food, clothing, or shelter;
2. Care for the individual’s physical or mental health;
3. Manage the individual’s financial affairs; or
4. Make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.

Importantly, the Texas legislature did not include resources and forms of assistance that enable another person to make personal decisions for the individual regarding residence, voting, operating a motor vehicle, and marriage; to manage the individual’s financial affairs; to care for the individual’s physical or mental health; or to meet the individual’s needs for food, clothing, or shelter.

Some alternatives are familiar: a durable power of attorney; a medical power of attorney; a living Will or directive to physicians; a joint bank account; meals-on-wheels; services offered at assisted-living facilities.

Other alternatives are more arcane: a special needs trust; a declaration for mental health treatment; appointing a representative payee for public benefits; authorization agreement for non-parent relative or voluntary caregiver.

Oftentimes a vexing issue for the judge is whether the person has the capacity to sign one of the above-mentioned documents in the first place. If the person does not have the capacity to sign such documents, or does not understand the document or its consequences even after an explanation, then alternatives may not be feasible and a guardianship would be necessary. If for example, a person cannot provide informed consent to a doctor, then the person could not get treated by a doctor. Without informed consent, the doctor might withhold treatment from the person.