Sandra W. Reed’s Life Care Planning: Guardianship geared to guard declining from disaster

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your

life planning questions.

Maria discovered her mother, Lois, had invited a virtual stranger to move into her guest room. The young lady, an employee at the supermarket where Lois shops, had revealed a tale of woe about being recently separated from her husband while carting Lois’ groceries.

Maria intercepted and canceled the arrangement immediately. But this red flag prompted Maria to examine her mother’s affairs more carefully. To her horror, Maria learned that her mother had become fascinated with the idea of a reverse mortgage based on former U.S. Sen. Fred Thompson’s spots she’d seen on TV. Lois had actually called the company advertising reverse mortgages and had arranged an appointment with a representative to discuss establishing one on her mortgage-free home.

Maria tried to dissuade her mother from taking this step, which in her financial position was not warranted and would potentially deprive Louis and her heirs of a valuable asset. Her efforts were proving futile.  Maria’s further investigation revealed other disturbing facts. Her mother had run up credit card bills of several thousand dollars, ordering unneeded products that remained unopened in delivery packages.

It was clear to Maria something had to be done, and soon, or her mother might go through all her savings. She contacted her two brothers and outlined the situation, including her inability to reason with their mother. Tom, the oldest, suggested they meet with a lawyer.“My best friend, Joe, just went through this with his dad,” he told her. “He had to set up a guardianship to take over and protect his father and his assets. We may need to do the same thing with Mom.”

Joe, the youngest, had only a vague idea of how a guardianship works and was clueless as to how to obtain one.  In Maria’s mind, a guardianship would deprive her mother of all freedom and independence, putting her at the mercy of a person appointed by a judge. She was fearful that this would break her mother’s spirit, even shorten her life. Therefore, she entered the conference a skeptic, prepared to argue for less drastic strategies.

Determining Capacity to Engage in Certain Transactions

Maria and her brothers were all concerned about how to determine whether their mother was no longer capable of engaging in certain activities. The elder law attorney they consulted instructed them that their concern was valid, especially in light of the fact that the courts have not established a bright line test to answer this question. Instead, capacity is determined by the specific facts and transactions that are contemplated by the individual.

Following a detailed discussion of Lois’ recent actions, they all concluded that Lois did not have the capacity to understand the consequences of running up the balances on her credit cards or of entering into a reverse mortgage agreement. They were less concerned about her ability to make purchases at the grocery store or the gas station.

Letting her retain this function for herself, however, presented the practical problem of how to establish a method of payment for these that would not jeopardize the protective restrictions needed. The family agreed they wanted to let Lois retain some rights without undermining the protections needed. The brothers suggested Maria continue to monitor all of Lois’ finances to make sure that her lack of capacity did not spread to cover the common transactions left to her control.

Guardianship Can Be Limited

Maria was relieved to learn that a guardianship in Texas is recommended only if it is in the best interest of an incapacitated person. The guardianship is then designed to grant to the guardian only that authority absolutely required by the person’s mental and/or physical limitations.

“Mother has always been extremely self-reliant,” Maria said. Her brothers agreed and that they wanted her to maintain as much of that stance as she safely could.

The lawyer assured them that the law requires a guardianship to encourage independence. “If we determine a guardianship is advised, understand that your mother will retain all legal and civil rights and powers except those specifically designated by the court to the guardian,” he said.

After hearing the siblings describe their mother’s condition, the attorney indicated it did not sound as though she were totally incapacitated. They did agree to seek a limited guardianship, asking the court to find that Lois lacks the capacity to handle her financial affairs. The attorney explained that this limited guardianship stops short of the more global removal of rights in a total guardianship of the person and the estate.

Guardianship of the Person

A guardian of the person is granted the right and the duty to take care of, control and protect the ward, subject to any limitations set out by the court. This includes providing the person with clothing, food, medical care and shelter. The guardian of the person even has the right to take physical possession of the person as well as power to consent to medical, psychiatric and surgical treatment other than in-patient psychiatric commitment.

Guardianship of the Estate

The guardian of the estate takes control over all of the ward’s property. The guardian manages this property, is responsible for collecting any debts, any rents due on property and other money claims owed to incapacitated individual. In fact, the guardian of the estate also is required to enforce all obligations in favor of the person, even to bring or defend suits on their behalf.

Guardianship Not Recommended for Every Incapacity     

A guardianship may be appropriate under particular facts and circumstances in these situations:  (1) to make medical decisions; (2) to terminate communication with exploiters or abusers; (3) to prevent one from contracting to his or her detriment; (4) to stop an incapacitated driver from driving; (5) to protect a person against entering into marriage without adequate capacity to do so; (5) to seek a divorce or annulment when marriage was entered into without capacity; and (6) to protect an incapacitated person in a lawsuit.  That is not to say that a guardianship would always be advisable in these cases because the specific facts determine that advisability. The most important factor in making a determination whether a guardianship or some less restrictive measure should be taken to protect the individual is what would be in that person’s best interest.

If you have questions, please do not hesitate to call me at 254-797-0211 or email me at swreed2@yahoo.com.

Sandra W. Reed is an attorney with Katten & Benson, an elder law firm in Fort Worth.  She lives and practices in beautiful Somervell County near Chalk Mountain.

 

 

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