Archive for the ‘Guardianship’ Category

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The Houston Chronicle Is At It Again

November 7, 2011

On Friday, November 4, 2011, the Houston Chronicle ran a front-page story entitled, “Elderly Texans at Risk, and It’s Legal,” which is the latest in a series of articles over the last few years regarding the Chronicle‘s perceived deficiencies in the way that guardianship cases are handled by the Probate Courts in Texas.  You may recall that we reported on a similar story from October 22, 2010, and prior stories were published in the Chronicle in June 2007.

The new article depicts the story of Helen Hale, an 86-year old widow who was “plucked” from her house and placed into a retirement home, but the article glosses over the fact that Hale’s children were neglecting to provide appropriate care for her.  The article cites that over 30,000 elderly people in Texas have “lost the right to decide where they live, to choose a caretaker or to spend their life savings…” due to becoming incapacitated in their later years.  The article also cites that the number of guardianship cases in the larger counties like Harris, Travis, and Bexar has increased to the point that each probate judge handles a caseload of between 1,500 and 3,000 guardianships per court, but it fails to cite that these counties have special courts dedicated to handling guardianship cases.  Most interestingly, the article casts a negative light on these courts because “most [probate] judges have only a single investigator to check out potential problems” in guardianship cases.

Although the Chronicle appears to tell a compelling story of neglect in the Probate Courts, the story clearly fails to convey the facts about guardianships accurately.  The article faults the probate courts for having only one investigator per court, but it fails to mention that only the 10 largest counties in the State with special courts dedicated to handling guardianship cases have court investigators to investigate problems in guardianship cases.  In the 224 other counties in the state, no court investigator exists in the entire county, which means that the vast number of counties in the state have nobody to investigate guardianship issues.

Likewise, in the 10 largest counties that have special judges dedicated to hearing nothing but probate and guardianship cases, the Courts have investigators and auditors to closely monitor what happens in guardianship cases.  The 224 other counties in the state have judges who do not “specialize” in guardianship cases, and in many cases, those judges are not even lawyers.  Instead, the courts in the 224 smaller counties hear a wide variety of cases – civil, criminal, family, guardianship, etc. – and do not offer incapacitated individuals the same level of attention that they receive in the larger counties.

The Chronicle is correct that the number of guardianship cases has exploded in the last 20 years because of the aging population in Texas.  The Chronicle also correctly cites one of the Probate Judges in Houston when she says that guardianship disputes are “the most expensive endeavors that I see in probate courts.”  Guardianship disputes are incredibly complex, and they are often made more complex by attorneys who do not routinely practice in this area and who do not fully understand the complexities of these cases before they get involved.

In reality, no system is perfect, and every system is going to have flaws.  However, the Probate Courts in Harris County take the greatest care of any Courts in the state in attempting to protect the interests of the elderly in Houston.  If you find that you need to pursue a guardianship over a family member, please contact Ford + Mathiason.  Our attorneys have very substantial experience in contested guardianship cases, and we would be glad to assist you.

Posted in Elder Law, Guardianship | 3 Comments »

Self-Neglect: The Overlooked form of Elder Abuse

June 3, 2011

As Elder Abuse month comes to a close, the Houston Chronicle recently ran an article about the lesser-known and often overlooked form of elder abuse, self-neglect. While it is difficult enough for elders to report abuse from family, friends, or caretakers, self-neglect reporting must come from a different source altogether. An elder individual neglecting him or herself is never going to be able to report it, so it is up to friends, neighbors and loved ones to take up that responsibility. This is not a rare occurrence or a responsibility to be taken lightly, however, as over 60 percent of the 1,500 cases handled by Adult Protective Services each month involve elderly individuals who cannot properly care for themselves.

It is easy to shrug off the eccentric or erratic behavior of elderly individuals as simply the typical behavior of someone their age. Sadly, though, in far too many cases it can be much more serious. External signs such as excessive clutter or letting their homes fall into disrepair are some of the common signs that elderly individuals are neglecting themselves. Sometimes the signs of self-neglect not as easily observable, though. Often times an individual may not be eating enough, or getting a balanced diet. They may be forgetting to take their medications, or accidentally taking the wrong doses. The only way this can be observed and reported is if those close to them take the time to educate themselves and take on the responsibility of knowing how to care for their loved one.

This type of elder abuse poses significant danger to the elderly, and only promises to get worse as we see the baby boomers aging. Take the time to learn about the medications your neighbors or family members are on. If you suspect a friend or loved one is a victim of self-neglect do not be afraid to make an honest assessment of the situation. If you believe that someone is incapable of caring for herself, you not only have a duty under the law to report it, but more importantly you owe it to her for her own safety and well-being.

Posted in Elder Law, Guardianship | 1 Comment »

May is Elder Abuse Prevention Month

May 18, 2011

May is Elder Abuse Prevention Month and in light of this the Disability and Elder Law Attorney’s Association welcomed Harris County District Attorney Pat Lykos as its keynote speaker this month. Judge Lykos was joined by Kate Dolan, Assistant District Attorney in charge of the Elder Abuse Division.

The speech focused on the common causes of Elder Abuse, the most frequent offenders, and the reason that a majority of these crimes go unreported. Not surprisingly the common theme in most of these cases involves family members seeking money from elderly parents or grandparents. However such crimes are not limited to monetary exploitation and can include physical, psychological, and sexual abuse. Unfortunately a vast majority of these crimes go unreported because of the strong emotional bond between elderly victims and the abusive family member and/or the embarrassment that naturally stems from being a victim of such abuse.

The presentation wrapped up with a rundown of the reporting guidelines which are listed in the Human Resources Code Section 48.051. Such section states that a person having cause to believe that an elderly or disabled person is being abused, neglected, or exploited, shall report the information immediately to the authorities. Such duty applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, and mental health professional.

The report may be made orally or in writing and needs to include not only the name, age, and address of the elderly or disabled person but also the name and address of any person responsible for that person’s care; the nature and extent of the person’s condition; the basis of the reporter’s knowledge; and any other relevant information.

Such reports can be made to the police by dialing 911, Adult Protective Services (APS), Department of Aging and Disablity Services (DADS); or the County Attorney’s Office Protective Division, by calling Celilia Longoria at 713-578-2181.

Please help do your part to prevent this rapidly increasing problem. If you suspect that an elderly or disabled person is the victim of abuse, please contact one of the departments listed above or give us a call at 713-260-3926.

Posted in Elder Law, Guardianship, Litigation, Probate | Comments Off

This Week in Appeals – Ford & Mathiason Wins Again

March 23, 2011

Case: Courtney Guyton vs. Cynthia Monteau
Court: Fourteenth Court of Appeals – Houston

The Fourteenth Court of Appeals this week has ruled in F&M’s favor involving the ability of a probate court to appoint a third party administrator over the application of a beneficiary of the estate.

F&M appealed the denial of their client’s application to be appointed as the Successor Administrator of her father’s estate. After a hearing on the merits in which only one objection to her appointment was raised, the court denied the Applicant’s appointment based on a perceived conflict amongst the parties.

The trial court admitted that the only objection raised by the parties was not sufficient to disqualify the Applicant from serving. However after the opponent’s counsel requested the court to take judicial notice of the entire file, the Court ruled that it was appointing an independent third party as administrator.

The Court of Appeals overruled, noting that the burden of proof rests on those opposing an applicant’s appointment. Because none of the reasons given by the trial court for its decision was asserted by any interested party, the Court of Appeals ruled that the trial judge abused his discretion by denying the Applicant’s appointment and appointing a third party. The case was remanded to the trial court with instructions to grant the application and appoint Courtney Guyton as Administrator.

What does all of this mean for you? If you feel you’ve been wrongly denied an appointment, call us today and schedule an appointment to discuss your matter. Even where a Judge has ruled against you there may still be options available, but the timelines are short so do not delay.

Posted in Guardianship, Probate | Comments Off

2011 Legislative Update, Part 2

March 18, 2011

Among the other potential legislative changes that might have a negative effect on guardianships in Texas is Senate Bill 1027, which was also introduced by state Senator Chris Harris representing Denton County. Under this proposed bill, Harris would add a new section to the Probate Code that would prohibit an attorney who serves as guardian of someone to also provide legal services on behalf of the guardianship. This proposal is terrible legislation as it may be unconstitutional, and it is certainly counter to extremely long-standing law in Texas.

On the question of constitutionality, this proposed legislation would prohibit an attorney serving as guardian to also provide legal services for the Ward. This sounds like an unreasonable restriction on an attorney’s right to practice law, which raises a constitutional issue. Likewise, this proposal seems to discriminate only against lawyers and not other professionals like doctors, financial planners, and accountants who might also serve as guardians and also provide professional services to them.

More significant than the constitutional question is the fact that this proposed legislation violates long-standing Texas law that has been recognized by every Court in the state. The Courts have uniformly agreed that allowing an attorney to serve the dual role of guardian and attorney simply saves time and money for the Ward’s estate and promotes the Ward’s best interest because of the fees saved by the attorney/guardian not having to hire an additional attorney to complete the tasks that the attorney/guardian could complete more easily himself. The rationale recognizes the inherent inefficiency of having to educate an outside attorney at every turn of the guardianship when the attorney/guardian would not have to educate himself.

Ford & Mathiason practices extensively in the guardianship arena, and we certainly recognize that the appointment of an attorney as guardian can lead to some abuses of the position. However, the relatively small numbers of cases in which we find abuses do not justify the kind of bad law that would emanate from Senate Bill 1027. Please contact your Texas Legislators to encourage them to vote against this Bill.

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2011 Legislative Update, Part 1

March 15, 2011

As you may know, the Texas Legislature convenes in January of every odd year, and the Legislative session generally extends for 140 days (approximately 4.5 months). During the Legislative session, hundreds of bills may be introduced covering a wide array of topics. The 2011 session convened in January and will extend until the end of May. Saturday, March 12, 2011, was the last day for legislators to file bills that they wanted to have considered in this Legislative session. The Legislature provides online access through the Texas Legislature Online to view and track the proposed legislation up for debate in the Legislative session.

Among the topics covered in many of these bills are various issues related to probate and guardianships. From my review of these bills, it appears that there are sweeping changes that have been proposed in the probate and guardianship arenas. Many of these changes mark distinct changes in the status of the current law, and some of the proposals are simply bad law.

Probably the most disconcerting of these proposed changes to law is Senate Bill 286, which has been introduced by state Senator Chris Harris, who represents Denton County in the Legislature. This bill would allow Judges in guardianship cases to charge the attorney’s fees in a guardianship case to one party or the other when there has been a guardianship contest. His legislation would also open the door for Courts to assess the fees for court-appointed attorneys against the party bringing the guardianship action.

This proposed legislation could have a chilling effect on guardianships and jeopardize the safety of many elderly adults who need protection from those taking advantage of them financially or neglecting their personal welfare and safety. Although the Bill is likely intended to curtail abuses of the guardianship process, its intent will be quickly distorted by Courts that do not fully appreciate the complexities of guardianships.

The problem created is this: Unlike litigants in any other type of lawsuit, litigants who file guardianship actions do not stand to benefit personally from the guardianship case. Rather, they are looking to institute a mechanism for protecting an elderly person who is incapable of protecting themselves. If a litigant faces the risk of having to pay someone else’s attorney’s fees when they are simply trying to help an elderly family member or friend will likely be deterred from getting involved in trying to help that person. This will create a significant deterrent for those who might be inclined to help protect an elderly person, and it will lead to significant problems for potential elderly victims of abuse.

You should contact your Texas Legislator to encourage them to vote against Senate Bill 286.

Posted in Guardianship | 1 Comment »

Five Documents to Include in Your New Year’s Resolutions

February 8, 2011

Now that you’ve recovered from the holidays and can focus on starting the New Year off right, it’s time to stop putting off getting those estate planning documents done and make this the year you cross that resolution off your list. The only question is which documents do you need? Well here’s a list of the five most important ones to get you started.

#5 – Designation of Guardian Before the Need Arises
This one is by far the most underutilized document on this list but speaking from experience as a litigation attorney, this is one of the most important documents to have to avoid a fight later on. This document allows you to name your guardian (or perhaps more importantly specifically disqualify someone from serving as your guardian) before the need for such a guardian arises. Few cases can get as emotionally charged as a contested guardianship. This is especially true in situations where there’s a new marriage late in life. To avoid the heartache that comes with such a fight, do your family a favor and specifically name who you want to be your guardian now while there’s no question as to your capacity. Trust me, they will thank you for it later.

#4 – Directive to Physicians
Another example of a choice you can make now that will save your family untold amounts of heartache and gut-wrenching later. Sometimes called a DNR, this document instructs doctors as to what level of life sustaining treatment they are to employ should you find yourself in a persistent vegetative state. Do you want the doctors to do all they can to keep you alive via all available means? Or would you rather not rely on machines to prolong your life artificially? Don’t make your loved ones have to guess at what your wishes are, get this document drafted and leave no doubt as to your choice.

#3 – Statutory Durable Power of Attorney
This is another document that can save you tons of money in the long run. A Statutory Durable Power of Attorney is a document that allows you to name an Agent to act on your behalf should you become incapacitated later. This allows you to avoid the necessity of a guardianship altogether. Your agent has the ability to act on your behalf without needing to be named as your guardian. Now you might be asking yourself why you should go the trouble of designating a guardian as stated in #5 if you are just going to draft a Power of Attorney as well. Well, think of it this way, you become incapacitated and your daughter (who you named as your Agent under a POA) takes over your affairs. Sounds great right? But what happens when your caregiver hands you a piece of paper and convinces you to sign it, and it turns out to be another POA which revokes the one where you named your daughter as your agent and all of the sudden names your unscrupulous caregiver as your agent. In light of the fact that a guardianship overrides a POA, you prevent a cycle of dueling Agents by naming your guardian and giving them the trump card to step in take control for good.

#2 – Medical Power of Attorney
Same document as #3 only this one deals with your medical care instead of your financial dealings.

#1 – Will
The granddaddy of them all, your will is the most important document you can write. The reason being that it’s the one document that speaks for you when you are gone. Too many times people come into my office and told me that their loved one told them in no uncertain terms that they were to receive certain property but that such bequest wasn’t contained in the Will or worse there was no will. Every time I am stuck telling them that while I believe them, it doesn’t matter because without a will the probate code controls the disposition of an estate, and with a will the four corners of the document control. So if you’ve been putting it off, the time is now to get it done. If you happened to have a will already but need to tweak it, perhaps a codicil is all you need. Either way, get it done, 2012 will be here before you know it.

Posted in Estate Planning, Guardianship, Trusts, Wills | Comments Off

Appointees in Guardianship Proceedings Pt. 2: The Guardian ad Litem

August 20, 2010

In a prior post, we took a closer look at Court-appointed attorneys and their specific roles in guardianship proceedings. In every case, whether the Proposed Ward can truly afford it or not, the Court appoints an attorney ad litem to act as the Proposed Ward’s legal counsel. While that appointment is mandatory, the Court has the option (not a requirement!) to also appoint another attorney, known as the “guardian ad litem” for the Proposed Ward. The two roles may sound a bit similar, but they are in fact vastly different.

Just as any attorney ad litem must obtain and maintain special certification by the State Bar in order to be eligible for the appointment, so too must every guardian ad litem. However, the mandatory certification is just about the extent of the similarities between the two appointed roles.

While the attorney ad litem is bound to advocate for the Proposed Ward’s legal interests, the guardian ad litem is primarily concerned with the Proposed Ward’s “best interests.” On occasion, legal interests and best interests are precisely the same thing. Other times, they very clearly are not.

Remember that the attorney ad litem must treat the Proposed Ward like any other client. Confidentiality and the duties of loyalty and zealous advocacy apply. However, the guardian ad litem is not bound by a similar relationship. The guardian ad litem’s job is not to follow the Proposed Ward’s desires and decisions, but instead, the guardian ad litem often acts as an additional arm of the Court to gather information and evaluate what the guardian ad litem believes to be in the bests interests of the proposed ward, even if that decision conflicts with what the proposed ward believes to be in his own best interest.

A guardian ad litem will meet with the Proposed Ward, observe their ordinary daily routine, interview the parties to the guardianship, review any medical information, and generally soak up as much objective evidence as possible. Then, they will usually take a solid position on what the Court should or should not do to best protect the Proposed Ward. Their position may echo the guardianship applicant’s desires, the Proposed Ward’s desires, or fall somewhere in the middle.

The limit of a guardian ad litem’s role remains about as murky as you might expect. What do “best interests” really mean? As a result of a less-than-concrete definition of duties, you find different attorneys applying their own best judgment to the task when called to do the job. The role of the guardian ad litem is certainly important in the cases where the Court chooses to appoint one. It would be nice if the legislature provided a bit more substance to the rules related to them in order for them to be uniformly and effectively applied in guardianships all across our State.

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Appointees in Guardianship Proceedings (Part 1): The Attorney ad Litem

August 9, 2010

Guardianship proceedings often involve procedures that can be a bit confusing to most clients, no matter their position in the case. Among the items that makes guardianships unique is the Court’s use of appointed attorneys to fill specific roles. Over the next few posts, I felt it might be useful to outline why the Court appoints different people, as well as discuss the roles that the legislature intended these appointees fill.

In every guardianship proceeding, the Court must appoint an attorney (known as the “attorney ad litem”) for the individual alleged to be incapacitated (generally referred to as the “Proposed Ward”). The Attorney ad Litem is selected by the Judge and must obtain and maintain special certification by the State Bar of Texas in order to be eligible for appointments. By appointing an attorney ad litem to represent the Proposed Ward, the Judge makes sure that the Proposed Ward receives due process – a fair shake in a judicial proceeding. The attorney ad litem becomes the Proposed Ward’s attorney – to represent the Proposed Ward throughout the guardianship process so that his/her rights are not taken away unfairly.

Like every other attorney-client relationship, the attorney ad litem must maintain his or her client’s confidentiality and loyally pursue the lawful objectives as the client instructs. Just like every other attorney-client relationship, the attorney ad litem should meet with the Proposed Ward, review the Court’s file and discuss potential options and outcomes with the Proposed Ward. At the end of the day, the Proposed Ward’s instructions are the attorney ad litem’s marching orders. If the Proposed Ward opposes the guardianship, the attorney ad litem bears the obligation of opposing the guardianship as vigorously as though the Proposed Ward had hired the attorney himself.

In too many cases, I have seen attorneys ad litem take a lackadaisical approach to their obligations – particularly when the Proposed Ward shows outward signs of actually being incapacitated. Sometimes, attorneys ad litem are content to simply go through the motions of acting like their client’s attorney. Nothing could be more detrimental to the process than this. In fact, an attorney ad litem’s minimal efforts or complacency could very well harm the Proposed Ward by inviting an appeal or some other action by an interested party. The saying that comes to mind is, “if it’s worth doing, it’s worth doing right.”

The attorney ad litem should be the first to point out defects in the form or substance of an application or pleading. If there is an issue with a doctor’s evaluation, the attorney ad litem should be the first to call it to the Court’s attention. If the guardianship applicant lacks standing or might be disqualified, the attorney ad litem has an obligation to raise the issue and fulfill their purpose. Attorneys ad litem are appointed to advocate the legal interests of the Proposed Ward, and nothing short of their zealous advocacy provides their client with the due process to which he or she is entitled.

Posted in General, Guardianship | Comments Off

Temporary Guardianships: Perfect when they fit, Trouble when they don’t

July 6, 2010

In the past, this blog has identified many of the traditional elements of a guardianship matter, and has outlined many of the alternatives available under certain circumstances. Often, neither the traditional approach or the alternatives are a good fit. The situation might demand that action be taken quickly, particularly if the Proposed Ward and/or her property are at immediate risk.

Temporary guardianships and their procedural elements are frequently misunderstood, by clients and courts alike. In many cases, they are sought for the wrong reasons, or without adequate information, and they can sometimes do more harm than good. Today, temporary guardianships work very much like permanent guardianships. Their cornerstone differences are (a) a fast-tracked process, and (b) a temporary fix to what might be a permanent issue.

Under prior legislation, a temporary guardianship could be granted without notice to the Proposed Ward. I am consistently astonished by the continuing perception that this kind of procedure is still available in Texas. It is not. Many clients, attorneys and even judges apply the outdated procedure when they seek or grant an ex parte temporary guardianship, or one created before the Proposed Ward is ever even notified.

Today, the Probate Code is clear on the notice provisions of every temporary guardianship. When an application is filed, an attorney is appointed to represent the Proposed Ward. The Clerk issues specific notices and provides a copy of the application to every concerned party, including the appointed attorney. The Court sets a hearing date, generally within 10 days. If these steps are not followed, the Court cannot create a temporary guardianship. If it does, buckle up for the bumpy ride.

Temporary guardianships can be a wonderful tool when used appropriately. In a time when a hearing on a permanent guardianship might take weeks to coordinate, temporary guardianships get the ball rolling much faster. In true emergency situations, they can safeguard the Proposed Ward from imminent harm and even temporarily lock down the Proposed Ward’s estate if it is at risk. Used correctly, temporary guardianships can be true lifesavers. Sought for the wrong reasons, or created under repealed and rewritten laws, temporary guardianships can cause more trouble than they fix.

Posted in Guardianship, Probate | Comments Off

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