Two Main Issues: Incapacity & Who Should Be Appointed

If a person is incapacitated, who gets custody?

In a guardianship, the first two questions our probate attorneys are asked is:

Is the person incapacitate?
If so, who is the best person to be appointed as guardian?

The Definition of Incapacity

An “incapacitated person” is an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.

In order to obtain a guardianship, a doctor’s letter must be presented which asks and has a medical doctor or D.O. answer the following questions in their opinion:

What is the general nature and degree of the incapacity?
What is the Proposed Ward’s medical history as it is related to the incapacity?
What is the prognosis, including the estimated severity, of the incapacity?
How and in what manner does Proposed Ward’s physical or mental health affect her ability to make or communicate responsible decisions?
If the underlying diagnosis of the incapacity is that of “senility”, please describe the precise physical and mental condition underlying the diagnosis of senility.
Is Proposed Ward capable of operating a motor vehicle?
Is Proposed Ward capable of making an informed decision concerning matters decided by a public vote?
Is it feasible for the Proposed Ward to attend the guardianship proceeding? If no, state the reasons supporting your opinion, including physical impairments, medications affecting demeanor or her ability to travel or attend, etc.

Who Can File for Guardianship?

Any person may file for a guardianship. If a proposed ward is totally incapacitated and a doctor verifies same in answer to the above questions, then a total taking of the ward’s rights and a turnover of all of the ward’s rights to the guardian can occur.

The Process

The process is to file an application
Obtain a doctor’s letter
The ward is personally served (and, if it is a minor, the ward’s parents are also served)
The court appoints an attorney ad litem
Then there is a hearing to “prove-up” the guardianship.

If the court finds by clear and convincing evidence that the Ward is incapacitated and a guardianship is in the ward’s best interest and by a preponderance of the evidence that the person to be appointed is eligible to serve, then a guardianship is ordered.

If the Proposed Ward meets the definition of incapacitated, but is not “totally” incapacitated, (meaning he or she can do some things for themselves, but not others), then a limited guardianship can be established.

Texas law specifically states that “[a]n incapacitated person for whom a guardian is appointed retains all legal and civil rights and powers, except those designated by court order as legal disabilities by virtue of having been specifically granted to the guardian.”

This law allows for a court to customize or tailor any guardianship to the specific needs of the ward. In other words, a guardianship is not an all or nothing proposition you can have narrowly tailored, or limited guardianship that still allows a proposed ward to vote or do other things that they may be capable of, while protecting that proposed ward from other areas in their life in which they have difficulty.

Can Guardianships be Modified?

Guardianships may be modified if a ward’s condition improves or they are able to learn new skills or medical treatment causes their condition to subside to any degree. The process is essentially the same and requires an application.

The ward has to be represented and have a hearing to prove that some impediment to the ward’s capacity, i.e., the ward’s incapacity, has improved and a lesser guardianship is needed. When there is a total recovery, the ward’s capacity can be completely restored, such that the ward re-obtains all of his or her rights and is treated as if guardianship was never necessary. The same court process is required for a total restoration as well.

Who Should be Appointed as a Guardian?

The second question in a guardianship is who should be appointed. This question is, usually, easily answered in the case of a minor it would be his or her parents. The parents can be adversarial or divorced and in such cases, a court battle can ensue.

In the case of an adult, the first person in line to be appointed is the person the ward chooses either by Declaration of Guardian in the Event of Incapacity (signed before the incapacity) or by telling the judge through his or her attorney ad litem; assuming the chosen person is qualified.

It is presumed not to be in the best interest of the ward to appoint a bad person, a person convicted of any sexual assault or injury or injury to a child or an adult, or of abandoning or endangering a child or incest. There is a hierarchy.

How Many Guardians Can the Person Have?

Only one person may be appointed as guardian of the person or the estate. There cannot be co-guardians of the person or co-guardians of the estate, with a few exceptions, but different persons can be guardians of the person or estate. In either case, there is a hierarchy of persons who may be appointed that, generally, is as follows:

(a) The ward’s spouse.
(b) Nearest of kin to the ward.
(3) The person best qualified among two or more persons equally qualified.

This is usually the source of guardianship litigation.

Guardianship litigation is rarely over incapacity, but more often over two people have a competing desire to be the guardian of the person or estate. The theory is that the court must decide between them to determine who is best suited to serve; many times, the easiest method to “break the tie” is to appoint an independent third party or a governmental entity.

Persons Disqualified to Serve as Guardian:

A minor
A person whose conduct is notoriously bad
An incapacitated person
A person who is a party to a lawsuit and/or has an interest that is adverse to the ward
A person indebted to the ward
A person incapable of serving due to inexperience, lack of education or the like
A person found to be unsuitable
A person disqualified in a designation signed by the ward before their incapacity