Texas Guardianship And Conservatorship Legal Questions

A power of attorney typically can assist in avoiding the need to seek court involvement regarding guardianship proceedings.  If the proper power of attorney does not exist, then you should meet with an attorney to see if one can be accomplished.  It may be that your sister does have the capacity to execute a power of attorney, however, if she lacks capacity then the court must intervene through a guardianship proceeding.  You will want to discuss the particular situation with an attorney and your goals from the Guardianship proceeding, as it is likely the court will appoint a Guardian-ad-Litem which is an attorney to represent your sister's interests.  ... Read More

Texas uses the term conservatorship.  If the child has resided in California for the last six months, California and not Texas has jurisdiction over a suit involving the child.  You should consult with an attorney licensed to practice in Calfornia. If you want to file in Texas, the child would first need to ive in Texas for six months before the date of filing. Please consult with an attorney about the best approach. You do not state your relationship to the child.  This is for general educational purposes only.... Read More

Your son may have capacity to sign a Medical Power of Attorney appointing you his agent to speak for him when he is unable to communicate and a HIPAA Medical Information Release Authorization allowing you to access his records but he may also, between episodes, want to sign a Declaration for Mental Health Treatment stating what he does and does not want and directing people to contact you and perhaps other family members and his regular physician(s) if he is again hosipitalized.  When he lacks the legal capacity to sign these, you may need to apply for guardianship.  However, in part because people with a mental illness may present better at the hearing than when the application for guardianship is filed, it can be very difficult to protect someone with a mental illness by putting them under guardianship.... Read More

In Texas an agent under a Medical Power of Attorney is authorized to voice the wishes of the person granting it if that person is unable to communicate, nothing more. The person who can complete papers and access funds for payment of expenses is the agent under the Durable [Finanical] Power of Attorney.... Read More

If she is mentally challenged to the point that she could not enter into a contract to buy a car or lease an apartment, she lacks legal capacity to sign a Durable Power of Attorney (though she may have enough capacity to sign a Medical Power of Attorney, naming someone to speak for her when she cannot communicate).  You will then need to seek guardianship.  Your county probate court and the State Bar of Texas have lists of Approved Guardianship Attorneys.  Note that many practice in counties surrounding that in which they are registered and some practice statewide.... Read More

Given your description of your mother's state, she does not have legal or physical capacity to appoint someone her agent under a Durable Power of Attorney.  A guardianship must be sought. In addition, your father's Will must be settled.  If he left a Will, this must be submitted to probate court.  If not, one of three types of heirship proceedings must be used.... Read More

If your daughter's stroke makes her unable to make medical or financial decisions, someone must become her guardian (called "conservator" in California).  In Texas an application is submitted together with a Physician's Certificate of Medical Examination.  The applicant takes a one hour online court, submits to a criminal background check, completes various information documents for the court and a bond application.  The court appoints an attorney to represent the person who needs to be protected by a guardian (your daughter).  That attorney visits with your daughter and has the right to examine all her financial and medical records.  That attorney files a report with the court.  There is a hearing at which the guardian is appointed.  After the oath and bond are filed, the guardian can act.  While this obviously won't occur within the next two weeks, you may be able to pay for her medical coverage directly in the interim.  Depending on her financial situation, you may also be able to apply for Medicaid.  No hospital or nursing home receiving Medicaid can kick someone out for nonpayment while their application is pending. If someone is unable to communicate their wishes and has neither an agent under a medical power of attorney or a guardian of their person, the Texas Health and Safety Code permits others to speak for them.  If your daughter is married, her spouse would have priority.  If she has available adult children, they would come next.  Her parents would come first. The amount spent applying is recoverable from the protected person's estate.  How much this would be varies with location, in part because court filing fees and the deposit for the court-appointed attorney vary by location.  Whatever county your daughter is in, you will need to be represented by an Approved Guardianship Attorney.  The county probate court and State Bar of Texas have lists.  Keep in mind that an attorney listed in one county probably practices in surrounding counties and, especially with internet hearings during the pandemic, may practice statewide.  ... Read More

Anyone applyijng for guardianship must be represented by an Approved Guardianship Attorney.  The attorney will send a request for a Waiver of Right to Appointment to the wife.  If she does not sign the Waiver and contests the applicant's request for appointment, the applicant will have to show that she is not quallified.  The nonactions which you mention will need to be proven.... Read More

You need to hire an Approved Guardianship Attorney to represent you in applying to transfer the guardianship from El Paso County and to file any sworn guardianship of the estate accounting.  You can file an annual report of the well-being of the ward without an attorney.  Until the new county accepts the guardianship, please file that in El Paso County. The Bexar County probate courts should have a list of Approved Guardianship Attorneys.  A list is also available on the website of the State Bar of Texas.  ... Read More

Only your husband can appoint an agent or co-agent under his POA. If he lacks legal capacity to do so (for a financial POA this is the same level of legal capacity that he would need to contract), you should seek a guardianship.  Your local probate court and state bar should have a list of lawyers who are Approved Guardianship Attorneys. If you are afraid that there may be some funny business, as your husband's heir you can also ask the local probate court to examine the actions your sister-in-law took as your husband's agent.  If money is flying out the window, you can also file a Motion for a Temporary Restraining Order and report to Adult Protective Services.... Read More

If you are her spouse, you have priority and should have been sent a Waiver of Right to Appointment.  You do not need a lawyer to object to guardianship:  write the Court.  If you fear that a guardianship will be awarded and want to be the guardian yourself, hire an Approved Guardianship Attorney.  If your local court does not have a list, check the State Bar of Texas website.  Note that attorneys are registered in one county but often also practice in surrounding counties.... Read More

No one can "get POA over" someone else.  A power of attorney can be granted by the person who wants someone else to also be able to make financial decisions (a Durable Power of Attorney) or to speak for them, communicating their choices, when they cannot communicate (a Medical Power of Attorney).  Neither of these allow the agent under the power of attorney to admit someone to a facility.  If someone lacks legal capacity to provide for their own food, shelter and medical care or to manage their own finances, a court can award a guardianship.  While a guardian of the person can decide where the person lives, this does not extend to involuntary commitment.... Read More

Having violated his fiduciary duty, your husband will likely be removed as guardian of the estate by the probate court. You do not write which court this is.  Abusing, neglecting, defrauding or exploiting a disabled person or someone over 65 is a first degree felony in Texas.  Significant prison time could be imposed.... Read More

Someone under a guardianship can write to the court asking to have their rights restored.  The court will appoint an attorney (called a guardian ad litem) to investigate. A person under guardianship does not have to sign anything agreeing to be under guardianship.  A guardianship is imposed by the court.  ... Read More

An application for guardianship of the person and estate, filed by an Approved Guardianship Attorney, must be accompanied by a Physician's Certificate of Medical Examination which shows that the person is no longer mentally capable to provide for his own food, shelter and medical care or manage his own finances. If your father has granted someone a Durable [Financial] Power of Attorney, no guardianship of the estate should be necessary unless that person is robbing him. If the girlfriend is not your father's agent under a Durable Power of Attorney and bank records do not show that she is authorized to sign checks as a convenience or joint signer, alert the bank and see an attorney about possible elder exploitation, forgery and fraud.  You can find a local elder law attorney using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)   Please note that many people under a guardianship still retain legal capacity to make a Will.        ... Read More

If the medical and financial POAs are valid, your only apparent need for a guardianship is to access the trust.  However, your father will not need to be put under guardianship unless he lacks legal capacity to manage his own affairs.    Guardianship proceedings are held in the county where the person resides.  The application is filed by a lawyer who practices there.  The person applying to be guardian must appear before the judge.... Read More