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Guardianship Should be Last Recourse

This column first appeared in the SA Express News on January 18, 2016.

Dear Mr. Premack: June of 2015 temporary guardianship was given by probate court. My mother had given me POA medical and general, and the court made me temporary Guardian of her Person. A private company was named temporary Guardian of her Estate, but is making many mistakes. Four court dates gave been canceled, I do not know why. Next date scheduled in about 2 weeks. Mom and I both want out. My lawyer says for me to keep quiet and stop making waves. All I wanted was legal advice to stop my mother from writing checks to scams – 302 checks in 10 months. My lawyer says a POA done by military is no good in Texas. The JAG says it is good, but not when temporary guardianship is in effect. Can I revoke temporary guardianship and use her POA to stop my mom from sending money to scams? – PM

Temporary Guardianship is a court-based procedure used when there is immediate danger to an individual or immediate risk to that person’s finances. The Texas Estates Code says that a Temporary Guardianship expires 60 days after it is created, unless one of these things happens first: a) a permanent Guardian is appointed, b) a contest is heard and accepted by the court, or c) nine months pass without action, unless extended by the court.

Since the court has allowed delays of the hearing on making this into a permanent Guardianship, you are likely operating under the nine-month rule now – which would force the temporary Guardianship to expire in February unless someone asks for and the court grants an extension.

You should be discussing your goals with your attorney. If you personally want out, that is ok; you do not need to be involved in the proceedings. You can file papers to withdraw as applicant for Guardian. But your mother is not in the same position. She can only get out by going through the process. The court will need to rule she is not incapacitated, is able to manage her own finances, and can care for herself. If in fact she cannot do those things, then the court has no option but to appoint a permanent Guardian.

A POA prepared by the JAG is perfectly legal in Texas so long as it follows state law. The JAG is not known for spending a great deal of time with its clients, nor for preparing customized documents that meet specific needs. But the POAs they prepare, if done in accordance with Texas law, are valid (though sometimes incomplete). However, during the term of the Guardianship, the POA is suspended and may not be used. If the temporary Guardianship is terminated, the POA comes back into effect.

On the other hand, if the temporary Guardianship is converted by the court into a permanent Guardianship, then the POA is void and terminated when the permanent Guardian is appointed.

This whole episode points out the fact that Guardianship is never to be started without fully understanding the time, energy, money and stress that will result. Guardianship is a legal solution for elderly individuals whose capacity is questionable, but it is slow, expensive, demeaning and intrusive. Once the door is opened, it cannot be closed until the entire legal procedure has been completed. Your mother’s attorney can, on her behalf, make a motion to dismiss the Guardianship (and should do so to represent her properly), but the court will not allow dismissal unless it is clear that she has legal capacity. You cannot stop the proceeding because you already alleged to the court that your mother has capacity issues. The court cannot just walk away without being sure that she is protected.

Instead of filing for Guardianship, you should have consulted with a qualified Elder Law Attorney about alternatives. Perhaps your mothers POA was Durable and was written to allow you to transfer her funds into a Revocable Trust for her benefit. If not, perhaps she could have agreed to create such a Trust, understanding that your goal was to protect her in the least invasive manner. Instead, you selected Guardianship and you and she both must now suffer the painful consequences.


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