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While none of enjoy thinking about the possibility, sometimes the legal relationship known as “guardianship” needs to be put in place to safeguard an older relative who is unable to make decisions for themselves anymore. The first step in establishing this relationship is to talk with a guardianship attorney in Houston.

How Can I Establish Guardianship for an Elderly Relative in Houston?

In guardianship, a court appoints a guardian to make decisions for someone (known as the “ward”) who is unable to make decisions for themselves due to incapacity or disability. This process is very important for those situations where an elderly person can no longer manage their affairs safely due to cognitive decline, physical disability, or other significant health issues.

The person appointed as the guardian cares for the ward’s personal affairs, financial affairs, or both. A guardian of the person cares for matters like medical decisions, housing, and educational decisions (the last is for younger wards in particular and not usually applicable to elderly relatives). A guardian of the estate controls property and finances. The same person can be both guardian of person and estate, and this is common for guardianship of elderly relatives.

Quite naturally, the courts and the state of Texas do not establish such relationships lightly. When they are taking away a person’s freedom to make their own decisions, they have to be very careful that it’s absolutely necessary. For this reason, the process can be somewhat belabored, and you will need to go through the following steps to get it done:

Work With a Guardianship Attorney in Houston

Engaging an experienced elder law attorney is the best way to ensure the process goes as smoothly as possible. Look for attorneys who have experience particularly in dealing with those issues affecting older adults. It’s always wise to work with an attorney with probate experience and who knows how to deal with guardianship, trusts and wills, estate planning, and fiduciary services.

Decide If There’s a Real Need for Guardianship

Not all elderly individuals who experience some level of incapacity require guardianship. Before going to court, talk with your lawyer and carefully evaluate the individual’s ability to make informed decisions about their health, finances, and daily living.

Often, less restrictive alternatives, such as power of attorney, living wills, a money management program, assisted living, or supported decision making will suffice if the person has some capacity to make decisions. Healthcare professionals and social workers can sometimes be brought in to help determine whether guardianship is the most appropriate course of action.

Initiate the Legal Process

Once it is clear that guardianship is necessary, the legal process begins with filing a petition in the probate court in Houston. This petition must outline the reasons for the guardianship request, so you will need to provide detailed information about the elderly person’s condition and demonstrate that there are no less restrictive means of support available.

Appointment of an Attorney Ad Litem

After the petition is filed, the court will appoint an attorney ad litem to represent the interests of your elderly relative. The attorney ad litem’s role is to investigate the claims made in the petition, interview the elderly individual, and ensure that their rights are protected throughout the guardianship proceedings. This is done to protect the potential ward’s autonomy and ensure that the guardianship is necessary and appropriate.

The Guardianship Hearing

A guardianship hearing is scheduled once the attorney ad litem has completed their investigation. During the hearing, the petitioner must present evidence supporting the need for guardianship, and the court will also hear from the attorney ad litem, who will provide an independent assessment of the situation. If the court finds that the evidence supports the need for guardianship, it will appoint a guardian.

If you’ve been made a guardian by the court, you will have 20 days to sign an oath that you will perform the guardian’s duties. You will also have to post bond with the court. At that point, you are issued letters of guardianship by the court, which are valid for 16 months. To get those letters renewed, you would be required to present a report to the court and post a new bond.

Duties and Responsibilities of a Guardian

The guardian must act in the best interests of the elderly individual, making decisions that prioritize their safety, health, and quality of life. Guardianship involves not only the management of the elderly relative’s personal and health decisions but also their financial affairs.

You will need to take inventory of the elderly person’s assets, income, and expenses and manage them in a way that ensures your ward’s financial security. This responsibility may include paying bills, managing investments, and ensuring that any government benefits or insurance policies are properly accessed and applied. Guardians must keep detailed financial records and will be required to submit these records to the court periodically.

As guardian of the person, you will also need to report to the court on the condition and care of your elderly relative, including any changes in health, living arrangements, or financial status. These reports help the court monitor the guardianship and address any issues that may arise. Guardians must focus not only on the safety and basic needs of the ward but also on ensuring quality of life.

Family and Caregivers

Family members and other caregivers are still important, even with an official guardian in place. Their support and involvement are vital in ensuring that an elderly relative receives the care and attention they need. Families should work closely with legal and healthcare professionals to provide comprehensive information about the elderly person’s condition and needs and be aware of the legal responsibilities and the limitations of guardianship to provide the best possible care within the established framework.

Addressing Potential Conflicts

The guardianship process can sometimes lead to conflicts, especially if there are disagreements about the necessity or appropriateness of guardianship. A qualified lawyer can help you address these conflicts constructively and keep the focus on the best interests of your elderly relative. Mediation or counseling services can sometimes be used in resolving disputes and ensuring that all family members are on the same page.

Respecting the Ward’s Wishes

While guardianship involves making decisions on behalf of an incapacitated person, it’s important to respect the ward’s wishes and preferences as much as possible, too. Guardians should engage with their ward when this is possible, to understand their desires regarding their care and living arrangements. Respecting their dignity and autonomy, even within the constraints of guardianship, is vitally important to the emotional and psychological well-being of the ward.

Guardianship Termination

Guardianship is not necessarily a permanent arrangement. If the elderly person’s condition improves to the point where they can make their own decisions again, or if a less restrictive alternative becomes possible, the guardianship can be terminated. To terminate guardianship, you would again file a petition with the court and evidence must be presented to show that the elderly person no longer requires the guardianship. The court will review the evidence and make a determination.

Ensuring dignity, safety, and a high quality of life for your elderly relative should always be your focus, and it’s our focus, too. If you have an older relative in need of guardianship, come talk to us at Ford + Bergner LLP in today. We are trusted by families throughout the Houston area to help them through difficult times.