Guardianship: what you need to know

Transcript of Interview: “Guardianship: what you need to know”

Mike Barnes:

I think we hear all the time about Powers of Attorney and how important it is to get a power of attorney for your mom, your dad, or both of them. Sometimes people don’t get those, especially don’t get them in time, and then guardianship comes into play. That can be very confusing.

Kim Barnes:

Very confusing, and sometimes people think, “Oh, let’s just go get one,” and it’s not necessarily that simple. So today we are going to talk to two attorneys. We have Colin Norman and Laurel Smith, both of Keane Miller, based in the Houston office of the law firm. Thanks so much for being with us here today. We get so many questions or mentions about, “Oh, just go get a guardianship. That’ll be the way to help our aging parents,” and it’s really not necessarily that easy. So, Colin, let’s start with the very simple explanation of what is a guardianship.

Colin Norman:

Sure. So, guardianship is a part of the conversation when you’re talking about how to care for an aging parent. It’s a part of the tool belt that adult children can use, but I wouldn’t say it’s necessarily the tool that they want to go to immediately. You might think of it like a hammer or even a sledgehammer. It’s kind of the last and the best option when other alternatives that are out there aren’t going to be providing all of the care for the aging parent. It’s a court process at its core where you’re basically asking a court to decide that this aging parent can’t take care of themselves, whether it’s their own health care decisions or well-being decisions, or you’re talking about their financial decisions and taking care of their property. You need to have someone appointed to take over that decision-making process in the best interests of the adult.

Kim Barnes:

And sometimes we hear terms like conservatorship sort of interchanged. Those are not necessarily the same thing?

Colin Norman:

That’s right. In Texas, you hear conservatorship and guardianship kind of used interchangeably, but in Texas specifically, conservatorship just refers to the relationship between a minor child and an adult, talking about custody more often. Whereas in other states, conservatorship might be more akin to what’s called a guardianship of the estate, where you’re talking about the property and assets of an incapacitated person. But in Texas, we just call that a guardianship, in this case, a guardianship of the estate.

Mike Barnes:

Okay, so something’s going to depend on what state you’re in as far as what to be used. Laurel, a lot of people get a power of attorney. If you wait too long, you need the guardianship. Is there a reason why you should not worry about a power of attorney and just get the guardianship, or is it better to go ahead and get the POA?

Laurel Smith:

I think it’s important to assess what your situation is. If your loved one is already far advanced in Alzheimer’s, for example, there might be some concerns about whether or not that person even has the ability to execute a power of attorney. If you’re in a situation where your family members are considering estate planning and they want to make some decisions for themselves, we call Powers of Attorney ancillary documents. You can go to an attorney and have your will done and your ancillary documents, which are your Powers of Attorney, both medical and financial, as well as medical release documents, advanced directives to physicians, those types of documents. I highly recommend everyone having Powers of Attorney because they take a lot of that question mark out of the decision-making process. Your children already know your parents’ or your loved one’s wishes as to who’s going to be in control of what, and you’re not having to try to decide amongst yourselves who that’s going to be. Advanced planning is very important, but if you get to that point where you don’t have a power of attorney, guardianship may be your only option if the person is in an advanced mental incapacity stage.

Kim Barnes:

Can you give us some examples of scenarios where maybe guardianship is the best option or the only option at a point?

Laurel Smith:

Another example we see pretty often is when someone is in a car accident and, for example, is in a coma. Obviously, in a coma, they aren’t able to sign a power of attorney and can’t direct anyone to sign it for them. In that situation, guardianship is really your only option. We handle situations where we’re either managing the probate side of a wrongful death or the guardianship side of a severely injured person. Traumatic brain injury or other types of incapacities where guardianship is unexpectedly needed.

Mike Barnes:

Is there ever a situation where financial exploitation or a family member, or someone who is not even a family member, is taking advantage of the aging parent? How do those come into play sometimes?

Colin Norman:

Oh, yeah. A power of attorney puts someone in a place to act on behalf of the principal, so in this case, an aging parent, but it doesn’t take rights away from them. If they’re susceptible to being manipulated or exploited, or if you see a bunch of random charges on their credit card statement at the end of the month, you might think they’re not in their right mind to be making these sorts of decisions anymore. That’s where guardianship would be more appropriate because you’re basically saying this person cannot make the sorts of decisions that promote their best interests.

Laurel Smith:

Exactly. When you have a power of attorney, it doesn’t eliminate the need for guardianship if that power of attorney is not a suitable less restrictive alternative. For example, if someone is an agent or power of attorney for their family member but they’re not spending their money wisely, that power of attorney is not a suitable alternative to guardianship, and guardianship may still be necessary.

Mike Barnes:

Because the power of attorney gives me authority to help make decisions for my mom, for instance, but it doesn’t keep my mom from making decisions also, though, right?

Colin Norman:

Exactly. It doesn’t keep your mom from making certain decisions, being catfished, being scammed, etc., and it also doesn’t protect her from the agent who is making decisions for them if they are exploiting her.

Kim Barnes:

So having the power of attorney is often your first line of protection for your parents, but it might not be enough. Interesting. Let’s talk about the process because we’ve gotten Powers of Attorney for ourselves and for our kids, and our parents already have them as well. But it’s simply finding an attorney, sitting down with them, getting it drawn up, signing it, and you’re done. It’s a little tougher when you’re going through guardianship. Can you talk about those steps?

Colin Norman:

Totally. If you’re at the guardianship point, in most cases, you probably already considered a lot of the alternatives and decided those aren’t really going to work. Like with most things when you’re talking about the legal rights of someone, it’s a process that involves a lot of communication. You want to involve both the parents and other family members in the conversation. If you get to the point where you feel like these other alternatives aren’t really going to do it in terms of providing for the welfare of your aging parent, their living situation, or getting their financial affairs taken care of, then you proceed to the guardianship point. You’ll need a medical examination of the aging parent to support your application, essentially saying this person is incapacitated to make decisions in their best interest. You’re hiring an attorney, filing paperwork in court, and the court will appoint an attorney to represent the interests of the aging parent, called an attorney ad litem. The court could also appoint a guardian ad litem, who represents the best interests of the aging parent. You’ve got a lot of attorneys involved, a lot of paperwork being filed, and it becomes a lengthy, sometimes hotly contested situation. It’s important for adult children to keep in mind that just because you need this and feel like it’s the best thing, there are a lot of boxes to check and obstacles to get through before a court’s going to order a guardianship. They want to make sure that alternatives have been considered and that the person really needs this sort of help because it is a very involved process.

Mike Barnes:

Laurel, even if it seems easy to where my sister and I are getting along, we agree on everything, and mom has Alzheimer’s, it still takes time, right?

Laurel Smith:

It does take time. Even if it’s uncontested, it can still be a lengthy process. If you’ve gotten to the point where you’re making the decision to consult with an attorney for guardianship, it’s very important to get someone knowledgeable in that area, someone who does guardianship all the time. The lawyer is required by state law to be certified in guardianship, and the person who is going to become the guardian is also going to have to take some guardianship training as well. There are a lot of little missteps that can happen and nuances in the guardianship process that can occur if someone doesn’t know the process well, which can make it take even longer.

Kim Barnes:

So are we talking weeks, months, could it take a year? Just give us an idea of the length of time.

Laurel Smith:

It depends on the situation. I had an uncontested guardianship that took almost a year because the court was in a small county, and it was a slow process. In larger counties, it may not be as long, but if there’s a contest filed, litigation can take on average about two years. Once it’s contested, that’s essentially filing a lawsuit.

Mike Barnes:

Who would sometimes contest? The parent themselves, a sibling?

Colin Norman:

Yes, the person you’re seeking the guardianship over could contest. They will have an attorney ad litem to represent their interests, walk them through their legal options, and figure out the best course. Siblings can also contest. When trying to figure out the best way to care for parents, everyone has a different opinion, which can create conflicts. The spouse of the parent you’re seeking guardianship over can also contest. It can become a hotly litigated matter for sure.

Kim Barnes:

So when it’s just the parents signing the power of attorney, they get to choose who is in charge. But with guardianship, is it up to the judge to decide?

Laurel Smith:

Yes, the judge decides. Certain things can disqualify a person, like if they’ve been abusing or exploiting the parent or have conflicts of interest. Sometimes the family will agree on a person to serve, which is ideal. Ultimately, the judge determines if someone is suitable to serve as a guardian. If everyone is fighting, the judge may appoint a neutral person or a neutral third-party attorney.

Kim Barnes:

So the judge is deciding two things: does the person need a guardian, and is the person requesting the guardianship the right person to be the guardian?

Colin Norman:

Exactly. They have to figure out if there’s a need and the best way to address that need. In the planning process, parents can designate someone in advance who they would want as their guardian. It’s not necessarily determinative, but it can help address the question and hopefully resolve some issues about who should be appointed.

Kim Barnes:

What are some of the alternatives to guardianship? What should be considered first?

Laurel Smith:

All estate planning documents are great alternatives to guardianship, including powers of attorney, advanced directives, and additional supports and services through government programs. There are many programs for intellectually disabled persons that can advance their lives, employment programs, and resources to consider before guardianship. Guardianship should be a last resort when other alternatives don’t work.

Mike Barnes:

Once you have guardianship in place, what’s the process after that? Do you have to go before a judge for all decisions?

Laurel Smith:

A guardian is always required to have counsel because they are a fiduciary for the person. The most oversight is related to guardians of the estate. A guardian of the person is responsible for residential placement, care, providing food, clothing, shelter, and medical services. They have to file an annual report on the well-being of the ward. Guardians of the estate have to ask for court approval for certain things, file an accounting every year, and there’s more oversight. The complexity of the estate can dictate how often you need to go to court.

Colin Norman:

Yes, it depends on the needs of the ward. If it’s a simple estate, you may only need to file an accounting annually. If it’s more complex, with investments and multiple properties, you may need to go to court more frequently.

Kim Barnes:

What if a parent has limited funds? What options are there?

Laurel Smith:

It depends on where you live. There are state-run guardianship programs if you don’t have a family member who can take on that role. If the person runs out of money, they may rely on state medical services for care. Unfortunately, those facilities aren’t as good as privately run ones. It can be an extensive process if you don’t have a lot of money, so sometimes taking in Social Security and relying on government supports is the best option.

Mike Barnes:

Guardianship rules can vary state to state, right?

Colin Norman:

Yes, definitely. If you have a parent in Texas and you live in another state, you have to do the proceeding in Texas. Talking to an attorney in another state may give you a high-level understanding, but they may not know the intricacies needed to initiate the proceeding.

Kim Barnes:

Guardianship can be very expensive, right?

Colin Norman:

Yes, it can be. You’re paying for attorneys for all the different players involved in the proceeding, and it’s a lengthy process even if uncontested. It underlines the importance of starting the conversation early and promoting the best interests of your aging parent to avoid being forced into a corner.

Kim Barnes:

Is there anything else important that we need to share about guardianship?

Laurel Smith:

Maybe a quick explanation of the different roles in guardianship. Clients are often surprised to see all these attorneys involved. Guardianship is not something to be taken lightly because it involves taking away your loved one’s constitutional rights to make certain decisions. An attorney ad litem is appointed to represent the interests of the proposed ward, ensuring they have an advocate in court. A guardian ad litem is appointed to investigate the need for a guardianship and make recommendations to the court. The legislature anticipates a conflict between what the person’s best interests might be and what they want, so these roles exist to ensure that the person’s rights are protected.

Kim Barnes:

Who pays for all of those attorneys?

Laurel Smith:

The proposed ward’s estate typically pays for all these people to participate. This is why it’s so important to consider whether there really is a need to file for guardianship.

Mike Barnes:

Thank you so much, Laurel and Colin. You’ve explained a lot today.

Kim Barnes:

Yes, you’ve cleared up so many things. Guardianship should be a last resort when you’ve exhausted all other options. 

Mike Barnes:

Sometimes you need it, and when you do, you have to get an attorney involved. If you have any other topics you’d like us to discuss, please let us know at Parenting Aging Parents.

*This transcript is auto-generated. Please excuse any typos or mistakes.