Not Every State Handles Guardianships as Well as Texas

Guardianship laws exist to ensure our loved ones and their property receive proper protection and care when they are no longer able to care for themselves (we call them “wards”). The legal process, however, can be overwhelming and intimidating. Fortunately for Texans, we have a streamlined and sophisticated guardianship system that provides the utmost protection for potential wards.

This month’s New Yorker Magazine exposes serious problems with guardianships in the State of Nevada. Sadly, in Nevada, guardianships were unnecessarily and easily imposed on many individuals, without notification or representation by an attorney. Unscrupulous people took advantage of Nevada’s relaxed guardianship laws and successfully applied to be guardians over people who were strangers, and who did not need be in a guardianship. This was happening with essentially no legal protection afforded to the wards or their families. Nevada has reportedly passed legislation to eliminate this tragic trend.

In Texas, the guardianship laws are vastly more protective, and a proposed ward’s constitutional right to due process is protected. Amongst numerous other protections, the Texas Legislature requires that close relatives of a proposed ward are notified of proceedings, and the court must appoint an attorney to protect the legal interests of all potential wards in every guardianship case in Texas.

Ford + Bergner LLP’s guardianship law experts focus on complex guardianship issues every day, and we have helped hundreds of guardianship clients. The attorneys at Ford + Bergner LLP can answer any question you may have concerning guardianships in Texas.

Seeking Guardianship for a Minor or Incapacitated Person: Who Can Serve as Guardian?

Seeking guardianship for a loved one unable to care for themselves is a legal maneuver bringing considerable power in what happens to the person needing care. That is why when you seek guardianship for an underage person, an older person, or anyone else lacking capacity, consideration of your suitability is heavily scrutinized. Here in Texas, determining guardianship is a thorough process, and often, several people may be eligible. In the end, however, some may be able to be weeded out due to certain circumstances in favor of yourself.

How does the court determine who’s suitable for being a guardian? When considering  who should be taking care of an underage child or an incapacitated adult is a heavy responsibility, numerous situations are looked at for determining eligibility.

Analyzing Who’s Unsuitable

One of the first things the court is going to look at is background and reputation behind individuals on the list. Do any of the potential guardians have a bad reputation in the family? It isn’t always a family member and perhaps someone who’s close to the underage person or ailing adult. If you or they’ve had relationship problems with the ward in the past, this could be a red flag.

It’s also possible the immediate guardian on the list is under incapacitation when the time comes they’re needed. The court will choose another on the eligible list with the same criteria. An important aspect they’ll look at is if the guardian is underage themselves or just not mature enough to handle the task.

In most cases, the court chooses two guardians, one that takes care of the person directly, and another guardian taking care of the person’s financial affairs. Before any of those decisions get made based on reputation, both guardians need full residency in the state of Texas or an agent for their role if living in another state.

We’ll help you with all the complex matters of guardianship here at Ford + Bergner LLP.

Contact us and we’ll work closely with you through the entire process and prove to the court that you’re worthy of being guardian to someone close to you.

Guardianship Litigation: How Can You Determine When It Is Needed?

Guardianship Litigation can certainly be a challenging, stressful, and emotional time for a family. For some families and under some certain circumstances, guardianship litigation may be the last hope. However, this process could be avoided if an estate is planned thoroughly and carefully.

Typically, a family talks about their loved ones health and physical and mental abilities to help determine how a loved one will be taken care of. If a family wants to avoid this type of litigation, here or some things that a spouse or other relative can choose to do:

  • The parent is moved into a nursing home
  • The parent is moved into assisted living housing
  • The elderly or ill parent lives with one of the children who are now adults

Does the parent have a diminished capacity? If not, then your loved one may feel more comfortable in having an attorney help prepare a power of attorney. If a power of attorney is assigned, guardianship litigation may not be needed because the guardian will be appointed. If your family truly wants to avoid litigation, then someone can set up a trust.

If your loved one does has a diminished capacity, then what can you do? If your loved one is married, then the husband or wife can petition a court to help determine the level of capacity. If there is no spouse, an adult child can file the petition.

The litigation process may not always consist of friendly conversations. However, whatever happens during this process, there should be a clear understanding of what is needed.

If you have a loved one who may need to be appointed a guardian because of their state of mind or health, contact us for a consultation.

Francesca Hilton Passes Away

Francesca Hilton died at the age of 67 on January 6, 2015.  Francesca was the only child of well-known actress Zsa Zsa Gabor and hotel magnate, Conrad Hilton.  Francesca had fallen on hard times prior to her death, living in her car from time to time in and around Los Angeles, California.

Francesca had sought financial relief from her mother, however Zsa Zsa is currently under a guardianship and unable to make such decisions.  Prinz von Anhalt, Francesca’s step-father and Zsa Zsa’s current spouse, is the Court-appointed Guardian and cannot use any of Zsa Zsa’s money  to support Francesca.  In an effort to support herself, Francesca had been working on a book and her  long-time publicist was hoping for a book deal.

Francesca’s predicament raises a key issue that many should consider.  When parents become incapacitated and a guardianship is created, they cannot continue to support their children in any form.  The guardianship process is overseen by the Court to ensure that all of the guardianship assets are used to support the incapacitated person.  Even if a child or other family member demonstrates a pattern of support from the incapacitated person, the Court will not allow those assets to be given to the child or family member.

If you or someone you know have questions concerning guardianship or the guardianship process contact the experienced attorneys at Ford + Bergner LLP today.

Guardianship Litigation Can Be Challenging, But Sometimes It Is Necessary

Many people have their struggles with how they are going to help an aging family member or an aging friend or neighbor who can no longer care for himself or herself, in terms of the personal welfare and financial decisions. Many people want to offer their assistance, but they may be unfamiliar on how to get the legal authority to make it happen.

The person who may need the help may have not planned ahead by signing any kind of documents that gives someone else the legal authority. On the other hand, legal documents could have been signed, but it may list someone else as a potential authority. Guardianship gives someone the legal right to make key decisions for that person you love.

If there is an issue with other family members not properly taking care of the loved one, the person is not being properly cared for at a facility, or the alleged incapacitated person doesn’t want to have a guardian, guardianship litigation will occur at the beginning of the guardianship. The adult may not have any interest or willingness to become a Ward of the state, and that person has a legal right to fight the decision. Sometimes, you will find someone who is not really looking out for the person, but they may want to do it for their own sake.

Guardianship and probate matters are not things that should be taken lightly. These matters are constantly progressing, and they can be very complicated. It is critical to have someone on your side who will be extremely focused on the matter. You will need someone who understands everything of the matter, including the seriousness.

It is very important that family members, friends, or care providers to at least try to attempt to work with someone who is incapacitated. The person should be protected from being financially exploited and abuse. If an adult doesn’t think he or she needs guardianship, there may be resistance and refusal. Guardianship may be necessary if you feel that the person you want to help could do physical harm to himself or herself, as well as financial harm.

If you are struggling with finding an answer to your situation, there are people who can help you. Contact us, and you will not have to do this alone. We can give you the help you need.

What Two Aspects of Guardianship Litigation Do You Need to Consider to Make it Legal? (Part 2)

Dealing with Guardianship of the Estate

Being guardian to an entire estate means a lot more complicated legal territory to cover. We’ll be there for you through every step if you need complete financial control of a family member. You’ll still have to attend a hearing, and the person you’re caring for may be asked to attend as well if they’re able to.

Here, the bond you put up is going to be more substantial due to your control of the person’s finances. You also have to go through the legal steps of filing for an allowance that covers all the monthly expenses while you care for your family members. This even goes as far as having to publish a notice to creditors in a local newspaper to prove the person you’re guardian to has no debt.

Contact us here at Ford + Bergner LLP so we can help you through the entire guardianship application process in both of the above scenarios. We want you to have peace of mind about gaining control over a loved one’s life and finances, especially when it’s to rescue them from abuse.

What Two Aspects of Guardianship Litigation Do You Need to Consider to Make it Legal? (Part 1)

Guardianship litigation can get very complex, especially when you need to take over guardianship of a loved one you see being taken advantage of by someone else. Many families go through similar circumstances where a family member isn’t getting the proper care they need, whether it be someone elderly or a child. When a family member steps forward to be the guardian, they’re going to need a professional attorney that specializes in guardianship litigation to navigate this complex legal path.

We can provide that for you here at Ford + Bergner LLP. But guardianship is broken into two parts that may require seeking one or the other, or both, depending on your situation. This falls under guardianship of the person and the estate.

Seeking Guardianship for a Person

When filing for this initial category, you’re designating yourself as the one caring for the person in question. And it might look like a fairly simple process, though it’s not necessarily. While it’s a little easier than guardianship for the estate, you still need legal help going through the application process and the hearing.

In the application, we’ll help you fill out the appropriate information, plus gain access to the doctor caring for the person you’ll be guardian to. Getting information from the doctor about the person’s condition is going to be essential in order to prove they need your guardianship in order to function.

Afterward, we’ll help you through the hearing process. When we’re appointed as your attorney, we’re designated an attorney ad litem where we represent the best interests of the guardian and cared for person. This means we’ll be visiting the person you’ll be caring for in the facility or home where they live. We’ll confirm their condition and also confer with them so we can nurture a good working relationship in setting your best interests in motion.

During the hearing, we’ll help you through the bond process. This is a form of insurance policy by the court so the person being cared for can be reimbursed if money is taken from them. You probably won’t have to pay very much if seeking just guardianship of the person, though you’re required to put up more money for guardianship of the estate.

After successfully gaining guardianship of the person, you only have to file annual reports to the court on the condition of the person you’re being guardian to.

Guardianship: How Far Do Parental Rights Extend When Medical Decisions are Involved?

Making medical decisions can be difficult. Many times there are options to treatment. Even some natural and holistic approaches are becoming more popular than traditional medicine. However, medical decisions become even harder when a child is involved. Parents must not only consider what is best for their child, but often times they receive opposition from medical institutions if they do not agree with the recommended treatment. A recent case out of Ohio well illustrates this.

A Parent’s Right

In the summer of 2013, Sarah Hershberger was treated with chemotheraphy for 3 T-cell lymphoblastic lymphoma. Eleven-year-old Sarah pleaded with her parents to discontinue the treatment due to the miserable side effects. Her parents, who are Amish, sought a more natural approach with herbs and vitamins. They based their decision on prayer and the fear that chemo itself may kill Sarah. The Children’s hospital that was treating her immediately filed a guardianship court proceeding, with the goal of forcing the chemo treatment. Their argument is that evidence shows the survival rate for Sarah’s type of cancer is higher than 80 percent with treatment, but the disease is almost always fatal without. Sarah’s family, however, says they traveled to South America to a natural cancer treatment center. Experts there found that Sarah was now cancer-free. The judge in the case ruled in favor of Sarah’s family. However, his ruling was overturned twice in appeals court. The family went in to hiding to avoid having Sarah under the care of the court-appointed guardian and having the chemo treatments continued.

High Stakes

Most recently, the court-appointed guardian submitted her resignation to the judge, meaning the court battle is over. Sarah seems to be doing well. While it’s difficult to judge if her good health is the result of her first round of chemo, the natural treatments or both, the bigger question revolves around a parents right to choose the treatment they feel is best for their child. This question arises more than one might think. Parents may object to a certain treatment on religious grounds or simply because they think a different treatment is more beneficial, as is the case with Sarah’s family. Does a hospital have the right to force treatment on a child? Parents have a “fundamental right that guarantees you to raise and bring up your child in terms of their health care in a way that you see fit as a parent,” said Maurice Thompson, Sarah’s attorney and director of the 1851 Center for Constitutional Law. “The Hershbergers have strong constitutional rights that are at stake h ere,” Thompson continued.

Most think of guardianship cases as involving parental neglect or abuse. However, as this case illustrates, the question of guardianship can arise even within a loving, supportive family. Ford + Bergner specializes in guardianship issues and has the expertise to advocate on behalf of parents in even the most unique cases. Contact us for a

A Recent Case of Guardianship and Critical Medical Decisions

When a Texan man in his early 40s collapsed in his home, a guardianship battle ensued between his parents and his estranged wife.

The man apparently had not granted medical power of attorney to anyone, and decisions about life support were left by default to his wife.

His wife filed a ‘do not resuscitate’ order with the hospital. His parents, in their attempt to keep him on life support, filed an emergency application for guardianship. A judge awarded them temporary guardianship for 60 days. In addition to overseeing his medical decisions, his parents also received charge of his financial affairs; certain items that were removed from his home were returned to his parents by judge’s orders.

The man at the center of this guardianship struggle has unfortunately since passed away; as he lay ill, no one could ask him what he wanted done on his behalf. The events surrounding his medical catastrophe continue to raise important estate planning issues.

His circumstances underscore the need to prepare critical estate planning documents regardless of age; even if you aren’t elderly, you need to consider medical powers of attorney in the event that you suffer an incapacitating health catastrophe. Who would you trust to make medical decisions on your behalf? How about financial decisions? And what are your wishes regarding life support? All of these need to be considered carefully and addressed in specific detail.

You also need to make sure to update your estate planning documents to reflect major life changes. The man in this case had been estranged from his wife, and they were undergoing a divorce when he suffered the collapse of his health. Whatever estate documents he might have written up may not have reflected his current wishes.

In the absence of thorough estate planning, such medical catastrophes can lead to battles of guardianship between conflicting parties, adding to the stress of an already excruciating situation. Be sure to contact a reputable estate planning attorney to review these issues and make decisions that will be the most beneficial for you and for your loved ones.

When can the state assume guardianship over you?

An 85-year-old North Texan resident recently went in for hernia surgery. Afterwards, according to local news sources, a doctor reported him to Adult Protective Services. The man was then placed in a psych ward and in the protective custody of the state. Adult Protective Services also removed his wife from their home, as apparently there were concerns that he couldn’t take care of her properly, especially after his hernia surgery. The couple wound up being relocated to a nursing home in Arlington.
The results of an upcoming psych evaluation will determine whether the man remains in state custody or can return home. Adult Protective Services are reportedly concerned not only about the state of care for his wife, but also whether he’ll be able to continue looking after himself. They also mentioned that his home showed signs of hoarding behavior.
What issues are raised by this complex case?
Many seniors want to retain their freedom and self-sufficiency for as long as possible. Balanced against their desire for independence is the concern that they will live an isolated life and neglect their health and other needs.
As seen by this case, it isn’t always clear when an adult can be considered incapacitated. The state can move to assume guardianship even when incapacitation may seem borderline. There are those who argue that the man in this case had his rights infringed upon when he was initially taken to the psych ward and placed against his will in state custody. What does incapacitation mean and how can it be proved? Under what circumstances can a judgment of incapacitation be disputed and overturned? Don’t hesitate to discuss these issues with an attorney.
The state can step in to assume guardianship when there aren’t alternatives in place. An important part of estate planning involves naming people who can handle your care in the event that you become incapacitated. Durable power of attorney and medical power of attorney allow you to name people who will act on your behalf in financial and medical capacities respectively.
In the event that this sort of planning hasn’t taken place or has fallen through in some way, the courts will need to assign a guardian. One individual may be a guardian of the estate, overseeing your financial affairs, while another individual may be assigned a guardian of the person, who oversees your medical care, housing, and other essential needs; the same individual can serve both types of guardianship functions. The powers of your guardian can also be limited in various ways to only those areas of your life for which you truly require assistance.
Court-assigned guardians are usually a spouse or next of kin, though there are various qualities that may render someone ineligible to be your guardian; this may include a history of criminal conduct or evidence that an individual may not have sufficient experience to care for someone. One additional estate planning strategy you can undertake is to designate a potential guardian yourself, before you need one; the courts will take your recommendation under consideration and most likely follow it if the individual named is eligible. Designating a potential guardian in your estate planning documents can also reduce the chances of a dispute among family members over who will assume your guardianship.
When the state itself assumes guardianship, this may be a temporary measure until another guardian is appointed. However, there’s the possibility that you may be under state guardianship until your death if no one else is found eligible to handle your affairs and care for you. To discuss these issues further, contact an experienced attorney who can help you come up with solutions tailored to your circumstances.