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Guardianship is a serious matter. When a guardianship is put in place for an adult, much of that adult’s ability to make decisions for themselves and control their own money and future is put into the hands of another person. The court does not lightly assign guardianship and will carefully assess the mental capacity of a potential ward before assigning a guardian. Whether you need to prove that a loved one does need guardianship or you need to defend yourself or someone else from attempts to take away autonomy without warrant, a guardianship litigation attorney in Texas can help you understand what the courts are looking for and how to present the best possible case.

How Is Mental Capacity Evaluated in a Texas Guardianship Case?

The Texas law code defines an incapacitated person as an adult who cannot provide for themselves due to disability, disease, or injury. To be considered incapacitated, the person must not be able to get themselves food, clothing, and shelter or take care of their financial or physical health. They must show evidence that they cannot carry out their normal decision-making on a daily basis in the way that they used to and in line with the values that they held before they became incapacitated.

It’s important to understand the difference between mental incapacitation and physical incapacitation. A person may have suffered a physical injury that prohibits them from leaving their bed, for example, but still have perfect clarity mentally to make good decisions about what they want to buy. In this case, all they need is someone to do their shopping for them: they still have the mental capacity to make a shopping list and budget properly. A guardian is warranted only when a person is no longer able to make decisions and lacks the executive capacity to take good care of themselves.

What Can Cause Mental Incapacity?

There are all kinds of things that can cause mental incapacity. It could be a progressive condition, like Alzheimer’s or dementia, which are common with aging. Or, it could be due to a stroke or other sudden medical event. In some cases, a person suffers from developmental disabilities throughout their lives, and as they enter adulthood, they require a guardian to be appointed to help them continue living safely. Accidents and medications can also cause incapacitation.

Who Makes the Decision?

Doctors, nurse practitioners with supervision by a physician, or psychologists are all frequently asked to perform mental capacity assessments. The question is how much support a person needs and for how long. To make this kind of decision, the person will need to be evaluated very carefully through several interviews that go into great detail and look at the person’s self-care routine, daily ability to function, and performance on a variety of cognitive and mental health screening tools.

The doctor or psychologist making the decision will also typically consult other healthcare providers, professionals from social services, friends and family, and anyone else who has direct and intimate knowledge of the person’s mental state. A proper assessment takes hours to do well, since it’s important not to jump the gun. 

What Can Be Recommended?

While guardianship can be recommended after a mental health assessment, that’s not the only option. Taking away a person’s legal right to self-determination is an enormous step, and most good evaluators will default to recommending the least intrusive option that is in keeping with the safety and needs of the person being assessed. If the assessor believes that guardianship is not appropriate, they may recommend full-time caregiving. Another option is to appoint a power of attorney. A power of attorney has legal authorization to deal with many of the financial matters of another person but does not have the same kind of control as a guardian.

Guardians can be guardians of the estate or of the person. A guardian of the person makes decisions about a person’s physical needs, while a guardian of the estate makes financial decisions about how to best use the person’s resources and assets to support them.

Can a Ward’s Autonomy Be Restored After a Guardian Is Appointed?

It’s always possible to do a reassessment, and, in fact, the courts prefer for reassessments to be done whenever appropriate. If it is at all possible for a person to regain the capacity to care for themselves, then that should happen. A reassessment will be done with the same care as the original assessment and follow a similar process. Of course, for many wards, the situation that led to their guardianship in the first place only gets worse with time, as it is often due to age or a medical condition that only worsens. 

The Process

Initiating an Evaluation

The first step usually occurs when someone who cares about the potential ward applies for guardianship with the court. The application needs to include information about the person who needs guardianship, propose a guardian, and explain the actual nature of their incapacity. The application should also have a Physician’s Certification of Medical Examination attached to it, which is an evaluation done by a licensed doctor who has examined the ward within the last 120 days. 

Investigation

As soon as the application is filed, the court will appoint an investigator to thoroughly look into the matter and then an attorney ad litem. This latter person is tasked with representing the potential ward aggressively: their job is to push back against the request for guardianship if they believe that is necessary and represent the potential ward’s interests in court. The attorney ad litem will represent the ward and attempt to find out what the ward wants and then advocate for their wishes.

The investigator has to conduct a completely independent investigation into the matter to determine if guardianship is warranted. The investigator will need to look at all the medical records, interview the person who needs guardianship, and assess their living conditions carefully. Then the investigator will report to the court and make a recommendation.

Guardianship Hearing

Once the investigation is finished, there will be a hearing. At this hearing, the court will decide whether or not to establish guardianship and whether to appoint the proposed guardian as guardian. The person bringing the petition will need to bring all their evidence to prove the incapacity of the potential award and be thoroughly prepared with a strong case and specific evidence.

The investigator and attorney ad litem will also present all their evidence and make arguments on behalf of the potential ward. They may agree that guardianship is in someone’s best interests, completely disagree, or they may recommend something less extreme than a full guardianship. The attorney ad litem in particular is tasked with always advocating for the least restrictive safe option for the potential ward. The court will make the final decision.

Talk to a Guardianship Litigation Attorney in Texas

Whether you need to advocate for guardianship of a loved one in need or are concerned that someone is trying to take away your own or your loved one’s rights, having a lawyer who is on your side is an essential step to be sure that everything is done fairly. Contact Ford + Bergner LLP in Houston, Austin, or Dallas, TX today for a consultation.