Can Guardianship Be Established Against the Will of an Elderly Person?

 Posted on May 22, 2023 in Estate Planning

Taking care of an aging parent or loved one can be a challenging experience, especially if the person is no longer fully capable of caring for themselves or making informed decisions about their health or finances. In these cases, family members may wish to establish guardianship for an elderly loved one. The legal guardian of an elder will have the right to make decisions for them and the responsibility to provide the necessary care and assistance.

While guardianship may appear to be the best solution in certain situations, establishing guardianship can be a complex process, especially if an elderly person does not wish to give up their right to control their life or manage their own affairs. In these situations, family members may need to determine whether it may be possible to overcome a person's objections and establish guardianship against their will, or they may be able to consider alternative options that will meet the needs of all parties involved in a case.

Establishing Guardianship in Texas

In guardianship cases, a person will seek to be appointed by the court as the legal guardian of someone else, giving them the right to make decisions for the ward. Guardianship can be established for minors, elders, or people with physical or mental disabilities. When a person files a petition to establish guardianship, a court hearing will be held to determine whether guardianship is necessary and the extent of the authority the guardian will have over the ward.

Before a person can be named as a legal guardian for a ward, the court will need to establish that the ward is incapacitated. A person may be considered to be incapacitated if they are unable to fully address their daily needs, care for their own health, or manage their financial affairs. For example, if an elderly person has mobility issues that prevent them from moving about their home, dressing and bathing, or preparing meals without assistance, they may be considered to be incapacitated.

While the need for assistance may be evident in certain situations, an elderly person may be hesitant to give up control over their own life, and they may object to having someone else be responsible for addressing their needs. It may still be able to overcome these objections and establish guardianship, although evidence will need to be provided showing that a person is incapacitated and that appointing a legal guardian would be in their best interest. If necessary, medical and psychological examinations may be ordered by the court to determine the extent of a person's physical or mental disabilities and establish that there is a need for guardianship.

When establishing guardianship, the guardian should only be given as much authority as is necessary to provide for the ward's needs and protect their well-being. A ward's independence and self-reliance should be encouraged, and depending on the specific situation, the authority of a guardian may be limited, and the ward may be able to retain control over areas of their life where assistance is not needed. A limited guardianship may help ease an elderly person's concerns and ensure that they will be able to receive the necessary assistance while still being able to make decisions for themselves. A family may also consider alternatives to guardianship, such as putting a supported decision-making agreement in place or establishing a power of attorney that will apply in certain situations.

It is also important to note that guardianship can be temporary or permanent. In some cases, temporary guardianship may be a good solution for an elderly person who has experienced short-term health issues or needs assistance for a limited amount of time. Permanent guardianship may be established if the elderly person has ongoing health concerns or permanent disabilities that prevent them from being able to fully care for themselves, and it can ensure that a person will receive the proper care and treatment throughout the rest of their life.

Contact Our San Antonio, TX Guardianship Attorneys

While guardianship can be established against an elderly person's will in Texas, this is often a last resort. In most cases, it is preferable for family members to work together to determine what types of guardianship arrangements may be put in place or whether other options may be available. At The Law Office of Ryan C. Moe, PLLC, our San Antonio guardianship lawyers can provide guidance in these matters, and we can work with families to make sure they follow the correct procedures as they take steps to provide assistance for an elderly loved one. To schedule a consultation and learn more about your options, contact our office at 210-861-6000.

Sources:

https://statutes.capitol.texas.gov/Docs/ES/htm/ES.1101.htm

https://statutes.capitol.texas.gov/Docs/ES/htm/ES.1002.htm

https://statutes.capitol.texas.gov/Docs/ES/htm/ES.1001.htm