Incapacitated Adult Holding a Caregiver's HandWe may not always agree with the decisions our elderly parents make, but we have to accept that they have the right to make choices for themselves. However, when a parent or spouse begins to show signs that their judgment and decision-making abilities are impaired in some way, we may need to take legal action so that we can protect them from scams and get them the medical care they need. If your loved one has not already executed a Power of Attorney, you may have to petition the court for adult guardianship.

What Is Adult Guardianship?

Legal guardianship is a court-ordered relationship between a ward (the person who needs help) and a guardian (the person appointed to provide help). The guardian assumes legal responsibility for the ward and is required to protect him from neglect and exploitation, help him meet basic daily needs, and make medical and financial decisions on his behalf. It is a difficult role, but vitally important for the physical and financial wellbeing of the incapacitated person. Responsibilities include the following:

  • Managing estate assets in the ward’s best interests
  • Providing food, shelter, and medical care to the extent allowed by the ward’s assets
  • Filing an annual account of income and expenditures on behalf of the ward
  • Seeking permission from the court for certain actions

Guardians may be granted full or limited decision-making powers by the court, depending on the ward’s specific needs.

The Process of Petitioning for Guardianship in Texas

To establish an adult guardianship in Texas, a court must agree that the ward is incapable of making his or her own decisions and would benefit from a guardian. To confirm incapacity, the court will require a Certified Physician’s Examination detailing the proposed ward’s limitations and impairments, such as Alzheimer’s disease. Once it is determined that the person is in need of a guardian, the court must approve the guardian. Typically, the person asking the court to establish the guardianship is the one seeking appointment as guardian. This can be any person, including a family member, friend, or another interested party. The court will consider the following factors:

  • Preference of the ward, if he or she had named someone in writing prior to becoming incapacitated
  • Circumstances surrounding the incapacity
  • Who will serve the ward’s best interest

If more than one person is seeking guardianship, the court’s preferred order begins with the spouse and then moves to the next closest qualified family member. The guardian will have to undergo some training, submit to a criminal background check, and register with a state commission.

Petitioning for Guardianship in Arkansas

The process of applying for guardianship is similar in Arkansas. If you are a resident of the state, over 18, of sound mind, and not a convicted felon, you can file a petition for guardianship in the county where the proposed ward lives. You must also notify the ward’s closest family members and any institutions, such as a nursing home, or state agencies, such as DHS, who are involved in the ward’s care. You will have a hearing before a judge. If the guardianship is contested, the judge will make the final decision. If you are granted guardianship, you will be issued letters of guardianship, which you will present in situations where you need to act on the ward’s behalf.

What You Can Do Now to Avoid Needing to One Day File for Guardianship

Filing for guardianship of an adult family member is never easy. Your loved one may be resistant, making it a contentious and awkward process. He may have already made poor decisions that have cost him the savings he needs for his comfort and future care. If you are not at this point yet, you can take action now that will prevent the future need to petition the court for guardianship. By executing a Durable or Medical Power of Attorney while your loved one is mentally competent to do so, he or she will name an agent who can act on their behalf if they become unable to do so.

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Kline Pillow helps clients in TX and AR planning for the aging process with a specialty in Guardianship cases.