02 Sep Texas Guardianship & the Saga of Celebrity Conservatorship
Emily TaylorSenior Associate
With the exception of some Better Call Saul references, it is unusual for people outside of the legal world to take much interest in my practice area. Until now. Forget Law & Order and Suits, there’s a new exciting legal issue in town: guardianship. Since the #FreeBritney movement, people now more than ever are asking my opinion on guardianships, conservatorships, and all the details. Not a Britney fan? Nichelle Nichols (or Lt. Nyota Uhura for the Trekkies) has found herself in a conservatorship battle as well, bringing these issues even more attention. The remainder of this post is a simple breakdown of what these procedures look like in Texas, and how you can plan around them.
In Texas, conservatorships typically live in the family law realm and are related to children. A conservator is a person with Court ordered authority to have custody of a child. Although the term is “conservator” most people speak about who has “custody” of a child. There are different types of conservatorships and none of them reference custody of adults so that discussion is outside the scope of this article.
Instead, in Texas, these superstars would be facing guardianships. There are two kinds of guardianships: guardian of the person, and guardian of the estate. Both of these jobs come with a myriad of rights and duties. The guardian of a person takes care of the individual’s affairs including addressing
their medical needs, determining their residence, providing clothing and food, and facilitating employment. In Texas, a guardian of the person cannot, however, consent to inpatient psychiatric commitment. Comparatively, a guardian of the estate has the duty of possessing and managing all property belonging to the individual; enforcing debts, obligations, and suits in favor of the individual; and accessing the individual’s digital assets. Both of these guardians have an annual reporting requirement to the Court and both may be entitled to compensation approved by the Court. The compensation and alleged financial abuse are some of the hotly debated issues in both the Britney and Nichols case. However, being a guardian is a big job. It is taking on and managing some or all of another person’s life and all that comes with it. Though often compensation is waived by guardians in these cases, there must be availability for guardians to be paid for their time and efforts or there is a significant risk that no one will be willing to serve those who truly need the help of a guardian.
In Texas, if you are the individual over whom a guardianship is ordered, your liberties are no longer yours. It is a serious decision with colossal consequences. The Court does not take guardianships lightly. The process typically begins with a letter from a licensed physician. If the physician does not think the individual’s circumstances rise to the need of a guardian as indicated in the physician’s statement, the guardianship is basically dead in the water. An applicant (the person applying to be the guardian of another or their estate), taking the doctor’s letter with them, then applies to the Court to be named the guardian. The subject individual is not left to fend for his or her self. The Court appoints an Attorney Ad Litem to represent the individual over whom an applicant is seeking a guardianship. Additionally, the notice requirements of a guardianship can be quite cumbersome. Among others, adult children of the individual, as well as their spouses, agents under power of attorney, adult siblings, and managers of the care facility where they reside may require notice of a guardianship. These notice requirements provide an opportunity for people close to the individual and/or those already caring for them, to be aware of the pending proceeding and speak up if appropriate. Lastly, these guardianships are reviewed by the Court on an annual basis (that means Britney’s case has been reviewed annually for over a decade and yet the Court still believes she cannot manage her own affairs).
A guardianship is not necessarily a removal of all rights and liberties. The applicant in a guardianship case must satisfy to the Court that there is no lesser restrictive alternative (such as executing powers of attorney or putting in place a supported decision-making agreement). It is also worth noting that guardianships can be limited; meaning the guardian may be in charge of many of the individual’s daily activities, but that individual can still vote or drive or maintain a number of different rights. Further, guardianships can be modified or even terminated, if circumstances change for the individual under the guardianship.
So, how do you avoid you or your family getting caught up in a guardianship proceeding? Plan ahead while you are well and able. When applying for a guardianship, an applicant must demonstrate a need for the guardianship. Many guardianships can be avoided with appropriate advanced directives. For example, if the subject individual executed a robust Statutory Durable Power of Attorney (SDPOA), then there may never be a necessity for a guardian of the estate because the agent under the SDPOA is able to take care of the individual’s financial and contractual obligations. Similarly, if the individual executed a Medical Power of Attorney, HIPAA Authorization, Living Will, and a Declaration of Mental Health Treatment, there may not be a need for the guardian of the person. Finally, executing a Declaration of Guardian in the Event of Later Incapacity will tell the world who you prefer to be your guardian in the event you are found in a guardianship proceeding; this document can also veto someone who you anticipate may come forward to act as your guardian that you would not trust to do so. Assuming it is executed appropriately, the Court will review this Declaration as authority regarding who you do and do not want to serve as the guardian of your person or estate.
Stay in contact with your professionals. Having an attorney, CPA, and financial advisor at arm’s length will help keep you and your assets safe. Being on a first name basis with your banker and making your wishes known and documented is also a good rule of thumb. When possible, be transparent with your loved ones about your wishes and intentions. The more this is discussed, the less room there is for misinterpretation and legal battles so you can avoid your own freedom hashtag one day.
Copyright © 2021 by Emily Taylor. All rights reserved.