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San Antonio Express-News
January 10, 2002

Guardianship: Options and Process

© 1989-2004, Paul Premack

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Dear Mr. Premack: My father has a "Declaration of Guardian" that he executed many years ago. He now has Alzheimer’s and is in a nursing home. I am the first alternate Guardian. If the Guardian listed wishes to waive her right to guardianship and wants me to take Guardianship as the first alternate, what do I have to do? What will the court require? Thank you for your help. – B.T. via Email

The first thing you should do is look for alternatives to Guardianship. Since the goals of Guardianship are to 1) obtain legal authority to manage your father’s financial estate, and 2) obtain legal authority to manage your father’s medical and social condition, you should find out if he has already given someone those powers.

Thus, look for two legal documents he may have signed: a Durable Power of Attorney for financial management, and a Medical Power of Attorney. If he has a "Declaration of Guardian" then I suspect strongly that he has visited with an attorney and may also have the other legal documents. If so, read them to determine who he appointed as Agent. If the first named Agent is the same person who desires to step aside for Guardianship, she can also step aside as Agent. Hopefully you are named as alternate, and can care for him without court intervention.

What if your father does not have either type of Power of Attorney, or if special circumstances indicate that a Guardianship is the best choice for his care? First, you must hire an attorney to represent you since Guardianship is an intensively court-supervised process. The attorney will review the situation and advise you whether Guardianship is legally advisable.

If a Guardianship proceeding is started, the first named Guardian in the Declaration of Guardian should sign a waiver prepared by your attorney, giving up the right to serve. That waiver will be filed along with an Application for Guardianship in the county probate courts. Due process requires that your father be personally served with notice that the Guardianship has been filed, so you should carefully arrange the time and place that the process server will meet with him so your father will not be frightened by this official appearance.

The court will then appoint an attorney to represent your father, and in counties that have statutory probate courts (like Bexar County) the court will also dispatch the Court Investigator to review his situation. Your attorney will need to prove to the court the exact nature of your father’s incapacity, so a hearing will be held at which the judge will listen to medical testimony and all competing points of view, if any exist.

If the court agrees that your father is incapacitated and needs a Guardian for his protection, you should be appointed because you are the alternate person your father pre-selected. You will then post a bond, and your legal authority to make your father’s legal decisions will commence. Of course, you will also have to file a financial inventory, obtain the Judge’s permission for most financial transactions, and report annually to the court on your father’s condition. Guardianship works. But much time and many resources will be consumed if it is the route you must take to care for your father.

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Capacity to Sign Legal Docs
Disclaimer: This column answers a specific legal question offered by an individual in the South Texas area. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice that meets your individual needs. It may give you a solid basis for discussion with your own attorney. Also, please be aware that laws change. You should consult with your personal attorney before you take any action on this or any legal issue.

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