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Guardianship is a legal arrangement in which a person or entity is given the authority to care for another person. For an adult, establishing a guardianship essentially means that you are giving a person’s legal rights to someone else. This is supposed to be done in the best interests of the ward (the mentally or physical incapacitated person who is being “guarded”), but since this is such a big step, it’s common for heated legal disputes to arise when various parties have conflicting ideas about it what is best for the ward. In any such disputes, an experienced guardianship litigation attorney can make a big difference.

Implications of Guardianship Litigation

Why Bring Litigation?

There can be a number of reasons why you may wish to instigate litigation or may be facing litigation from another party, and the reason for the litigation will affect implications.

No Guardian Needed

One common reason for guardianship litigation is a disagreement over whether the ward needs a guardian at all. Some family members, for example, may argue that an elderly relative has reached a point of mental or physical incapacity where they are no longer able to make good decisions for themselves. Other relatives may strongly disagree and often do.

If these agreements cannot be resolved, litigation is necessary so that the court can determine what’s in the best interest of the potential ward. Wards themselves may also retain their own attorney and bring litigation if they believe they are not in need of guardianship. Anyone persuing litigation should understand that doing so means many decisions will be taken out of the hands of the various parties and given to the court.

Wrong Guardian Being Put Forward

Another common point of contention is who should be a guardian. It’s common for families, for example, to disagree over who is best suited to assume the role of guardian. This may be because some feel that another person is better suited to caring for the ward or over concerns about the trustworthiness of a potential guardian with financial matters. When strong emotions and a family history come into play, a dispute of this nature can turn into a long litigation and much lost privacy.

Guardian Not Acting in the Ward’s Best Interests

A third common reason for guardianship litigation is concern that an existing guardian is not doing their job. There may be concerns that they are mismanaging finances, neglecting the personal care of the ward, and more.

The court can remove a guardian if it believes that there has been misconduct, and sometimes, this is the case. At other times, concerns are really more personal, with family members upset because they feel that information is being withheld from them.

Limitations on the Guardianship

The court does have the right to impose some limits on the guardianship right from the beginning, and whether there should be limits and what they might be is often a source of contention and something that the various parties involved may wish to argue out in litigation.

With guardianship of the person, a limited guardian is only allowed to make decisions for the ward in certain areas. For example, a limited guardian may be appointed to vote for a ward. A limited guardian of the estate is under similar restrictions. For example, the court may allow the ward to make some decisions on their own, such as whether or not to sell their home, while turning over other financial decisions to the guardian, such as where and when to invest funds.

The Attorney Ad Litem

In a Texas guardianship case, the court will appoint what’s known as an “attorney ad litem” to advocate for the potential ward. This individual meets with the proposed ward to evaluate their situation and ensure that their wishes and preferences, if any, are relayed accurately to the court. The attorney ad litem reviews all medical records, financial statements, and any other relevant documentation to form an opinion on whether guardianship is appropriate and/or whether a current guardianship situation is being managed well.

If a change in guardian ship situation is proposed, the attorney ad litem will also review these changes to give the court an objective sense of whether everything is being done in the best interests of the ward. If there are multiple candidates being proposed as potential guardians, the attorney ad litem will often weigh in on which they consider to be the best choice.

One of the consequences of initiating guardianship litigation that all parties need to be aware of is the existence of the attorney ad litem. This person will need to have access to all documents, reports, medical records, and anything else that relates to the ward or potential ward as well anything that may be relevant to the choice of a guardian or investigation of a guardian’s competence.

Financial and Emotional Implications

Guardianship litigation can become expensive, especially when family members get involved in a drawn-out court battle. It’s always important to consider whether litigation is worth the financial hit to all parties, including to the estate of the ward themselves.

Even worse, these sorts of guardianship disputes frequently strain and even break family bonds. If the ward is cognitively aware of the conflict, they may experience great distress, as well. The constant back-and-forth, court hearings, and uncertainty about who will be named guardian can take a toll on everyone involved.

Dealing With Difficult Litigation Situations

Work With an Experienced Guardianship Litigation Attorney

No matter what your guardianship situation, having an attorney on your side with extensive experience in guardianship litigation will mean that things go as smoothly as possible under the circumstances. An attorney can help you to clarify your goals, fully understand what options the law offers you, represent you and serve as a go between with other parties, and argue persuasively for your goals in the court.

Make Sure Everyone Is On the Same Page

Many times, arguments about guardianship come primarily from basic misunderstandings either about the role of the guardian or about limitations that have been placed by the court. A lawyer can help you thoroughly review both the obligations and duties of the guardian and the rights of the ward so that everyone fully understands what to expect.

Keep Compassion Top of Mind

It’s very natural for guardianship disputes to become emotional. After all, you are almost always either facing the possible loss of your own autonomy or considering whether it should be taken from someone you love and respect. When families disagree on these issues, the negative emotions can tear them apart.

The best way to avoid this is to make a conscious decision to keep compassion at the forefront of every interaction. The goal in a guardianship situation should always be protecting a loved one and finding a practical solution to keep them safe. The goal should never be to “win.” The more everyone can keep this in mind, the smoother interactions will be and the more likely a solution can be reached in compromise that is truly in the ward’s best interests.

​Whatever guardianship ​litigation you ​are facing or contemplating, you need experienced and compassionate help. Contact us today at Ford + Bergner LLP in Houston, Dallas, or Austin areas to schedule a consultation and find out more.