Planning for the future can be overwhelming, but creating a care plan is one place to start for a family dealing with a member who has a disability.  Your loved one might qualify for local or federal benefits and you might be able to save for their needs in a tax-advantaged ABLE account.  For long-term planning, you might want to consider a trust for an individual with special needs.  When you have a family member with special needs, you think about so many things all at once that future planning often gets shunted aside in favor of getting through today. But most of the challenges you face are not temporary. So when you are ready, you might consider thinking through the whole life cycle of help that is ahead of you.

A good test for when you need to do advanced financial planning for an individual with special needs is if you anticipate them needing assistance caring for themselves through adulthood.  When you determine the severity of the need, you can then figure out what level of local and federal benefits are involved.

Individuals lose eligibility to certain government benefits if they have more than $2,000 in countable resources ($3,000, if married), according to the Social Security Administration.  But by saving in an ABLE account, some families can help shield contributions from that countable-resources limit. What’s more, after-tax contributions to these accounts can grow tax-deferred, and if withdrawals are used for qualified disability expenses, which includes but is not limited to rent, food, transportation, education and employment training, health care, and personal support services, any earnings on such distributions will be federal income tax-free. These accounts don’t make sense for everyone, so consult with a financial advisor to see if it is a good strategy for you.

It’s important to know that ABLE accounts do have an annual contribution limit.  In 2025, the limit is $19,000 from all contributors in aggregate.  However, the ABLE to Work provision of the Tax Cuts and Jobs Act of 2017 allows ABLE account owners who can work to save an additional amount equal to the lesser of their compensation for the taxable year, or an amount equal to the federal poverty level, which is $15,650 per single-person household in 2025.  Additionally, if the total assets in the ABLE account exceed $100,000, Social Security for the person with disabilities may be suspended.

It can be hard for families to look far down the road and think about what happens when primary caregivers are no longer able to care for their loved one, but setting up for the future can prevent mistakes later on that could negatively impact benefits and cause conflict.

For instance, it may not be a good idea to list a person with special needs as the beneficiary on a parent’s financial and retirement accounts. If the assets go to the child, that could interfere with their ability to receive Social Security income for disability benefits.

There are several types of trusts that many families establish for the benefit of individuals with special needs. One of the most common is a third-party special needs trust, which is created by someone who wants to leave money for a dependent with special needs but doesn’t want that person to lose out on government benefits. The trust can be established by a Will or created during the benefactor’s lifetime. The creators of the trust appoint a trustee who has discretion over when and how funds are distributed. The trustee cannot distribute money directly to the dependent, but they can pay for certain items and services not covered by the dependent’s monthly Supplemental Security Income (SSI) for disability. Upon the death of the dependent, whatever assets are left in the trust can be distributed according to the creator’s wishes as specified in the terms of the trust.  A third-party special needs trust can be used in conjunction with an ABLE account, so families needn’t choose one or the other.

All estate plans need to evolve over time to keep pace with changes in people’s lives and financial situations. When your family is dealing with an individual who has special needs or disabilities, it is even more important to include them in your plans.  To make sure your plan stays current, review it every 3 to 5 years, or whenever your life or your family changes in a major way. That way you can be confident that your loved ones will be cared for when you’re no longer here to look after them financially.

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The inheritance rights of adopted children are protected when a parent dies without a Will.  Under the Texas Estates Code, an adopted child is treated the same as a natural born child.  Therefore, the adopted child can inherit from his or her adopted parents and vice versa.  The adopted child can also inherit from his or her natural parents, but the natural parents cannot inherit from the child if the child dies without a Will.  This is an important consideration today when often an adopted child seeks and discovers the identity of a natural parent and then establishes a relationship with that parent.

After-born or after-adopted children who are born to or adopted by a person after he or she executed a Will in which such children were not provided for or mentioned at all may inherit only under limited circumstances, so it is best to execute a new Will or a Codicil to the existing Will to provide for the after-born or after-adopted children.

A stepchild does not inherit from a stepparent who dies without a Will because he or she is not considered to be legally related to that stepparent.  This is unfortunate where the stepchild was raised by a natural parent and/or a stepparent.  However, a stepchild may inherit from a stepparent who dies without a Will in some circumstances such as if the stepchild were adopted or an oral or written agreement exist.

Half-blood children share the same natural mother or father but not the same two natural parents.  A half-blood child inherits only half as much as a whole blood child.  For example, if a decedent’s only heirs are a half-blood brother or sister and a whole blood brother or sister, the half-blood heir takes one-third of the estate and the whole blood heir takes two-thirds.

An illegitimate child can inherit from his or her natural mother and vice versa when either dies without a Will.  By contrast, the illegitimate child may not be able to inherit from the natural father or the father’s family members who die without a Will, except upon the occurrence of one of certain specified events: (1) the child is born under circumstances described in the Texas Family Code; (2) the child is adjudicated to be the child of the father by court decree as provided in the Texas Family Code; (3) was legally adopted by his father or (4) if the father executed an acknowledgment of paternity in accordance with the Texas Family Code.  This means that even if a father maintains ties with his illegitimate child, that child will not inherit from him if he dies without a Will, except under limited circumstances.

If you do find yourself in second marriage or any of the above situations, or think you may be, you should consult an attorney.  The Will or estate plan you prepared years ago may not fit the circumstances today.

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I have seen situations where a family member suggest they be paid for caring for their elderly parent(s).  This reflects the views of many adult children who have elderly parents to care for.

Creating a caretaking agreement between relatives is something that benefits both the caretaker and the elderly relative.

However, a financial arrangement between a caretaker and an elderly relative can actually be a way to protect the older person.  There may come a time when they have to go into a nursing home and wish to qualify for Medicaid.  While I believe Medicaid should be an avenue of last resort, the caretaker agreement could help them qualify.

The financial arrangement must be an official one.  Any money given to a caretaker outside of the legal caretaker agreement could be construed as simply a gift.  This may cause a disqualification or delay in receiving benefits.

Although you may feel that you would gladly care for your mother or father for free, consider the benefits of a caregiver agreement.  Talk to your attorney about whether a contract of this kind could be useful to your family.  All situations are not equal, but if they are close to qualifying a caregiver agreement may be the ticket.

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That is a perfectly reasonable step to take, but it is important to consider the ramifications, especially as it may affect federal deposit insurance for accounts insured by the Federal Deposit Insurance Corporation (FDIC). Of course, another overriding consideration having more to do with human nature than federal regulations is whether there is a trusting relationship between or among everyone whose name is on an account.

Joint Bank Accounts

Under FDIC rules, a joint account is a deposit account owned by two or more people who have equal rights to withdraw all of the deposits and to close an account. Married couples, assuming they want to share the funds in the account, like the convenience of such a joint account so that either person can write checks on the account and pay bills from it. At an FDIC-insured institution, each co-owner is insured for up to $250,000 for his or her share in all joint accounts in that institution. But if all persons on the account do not have equal withdrawal rights, the account will not necessarily be FDIC insured up to the same amount as for a true joint account under FDIC rules.

A significant risk exist when you add another to your account, it puts your assets at risk.  I often consult with clients who have added a child to their account.  While they may complete trust in that child, there are factors that should be considered.  If you have added a child to your bank account and that child is sued as the result of an accident, divorce or contract dispute, those attorneys do not care that the account is yours.  Likewise, if your child is audited, the Internal Revenue Service will not care that it is your account.  Another example is if that child is hospitalized and can’t pay their bill.  If they are on your accounts, the attorneys for the hospital can place a lien against your account with the child’s name on it.  These are all real life experiences I have dealt with.

If the goal is to give someone limited access to a bank account when needed but not to grant ownership rights to the account, an alternative is to grant that person a power of attorney. Powers of attorney, which typically authorize someone to represent or act on another’s behalf in financial matters, can be crafted to permit the desired amount of access to bank accounts.

Credit Card Accounts

There are two different ways to give a second person the ability to use a credit card. Making that person a co-owner means that he or she will be financially responsible for all of the debt incurred with the credit card, regardless of which co-owner authorized a particular charge. In the alternative, an authorized user of the card may or may not be financially responsible for the debt, depending on the cardholder agreement. The card owner can put restrictions on authorized users, such as how much debt the authorized user can incur with the card.

Cosigning Loans

Succinctly put, a cosignor on a loan has agreed that the creditor can look to him or her for satisfaction of the debt if the debtor does not pay the debt. This obligation may well extend to any late fees and collection costs made necessary by the debtor’s delinquency. On top of that, the cosignor’s own credit rating could take a hit if the debtor doesn’t pay the debt or pays it late. All in all, the watchwords for cosigning on a loan are “proceed with caution.”

If you want someone to assist you with paying bills or managing your accounts, then you should consider talking to an attorney about the benefits of a Durable Power of Attorney.  Additionally, seeking legal advice before you cosign on a loan, would be a wise decision.

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The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Life is unpredictable and certain events can have a significant impact on your estate plan. It’s a misconception that once you’ve created your estate plan, you can just forget about it. It’s important to consider how common life changes can affect your existing estate plan.

Birth of a Child or Grandchild

Many parents create their estate plan after their first child is born. But if their plan only includes their first child, the second child might not get their fair share without going to court. That’s why it’s important for parents to update their estate plan after each subsequent child is born.

Similarly, if a grandchild is not included in the grandparents’ estate plan, they may not be able to receive any of the benefits or opportunities that the grandparents wanted them to have. This could happen because of the family’s structure or how the estate plan was written.

Death of a Family Member

When creating a will or trust, different people play different roles: the person making the document (Testator for a will or Settlor for a trust), the people who will receive something from it (beneficiaries), and the people responsible for making sure the instructions are followed (executor in a will, trustee in a trust).

If any of these people pass away, it can impact the estate plan. For example, if a beneficiary dies, their share may go to someone else or their own descendants. It’s important to review your estate plan to ensure your wishes are still carried out.

It is also important to have backup people in place in case the person you named as the personal representative, executor, or successor trustee is unable to carry out their duties (even if it’s due to passing away before you). If you didn’t name any backups, then your loved ones may have to choose someone to take over, or a judge may have to decide who should be appointed. This could be especially difficult for families who tend to have conflicts.

Purchasing a New Home

If you have a trust-based estate plan, it’s important to make sure that all of your property and accounts are owned by the trust or named as a beneficiary. When you buy a new home, you need to remember to transfer it into the trust to avoid probate.

When you buy real estate, the title company may assume that you are buying it as an individual or as a married couple, so you need to tell them that you want to buy it in the trust’s name. If you forget to do this, you will need to contact your estate planning attorney to transfer the property into the trust after a successful transaction.

If you don’t put your property into your trust, then after you pass away, it will either go to the person who co-owns it with you (if you co-own it in a certain way), or it will have to go through a court process called probate if you owned it individually or as a tenant-in-common. It’s another Risk of Neglecting Your Estate Plan.

Marriage or Divorce

Getting married is an exciting time, but it can also be complicated, especially when it comes to money and property. You and your spouse may own separate property, as well as property that you accumulate together during your marriage. To avoid confusion and ensure that your wishes are carried out, it’s important to have an estate plan that outlines what property is separate and what is joint, what you want to leave to your spouse, and who should make decisions for you if you are unable to do so. If you don’t update your estate plan after getting married, a court may have to get involved to determine how your property should be distributed and who should make decisions for you.

If you get divorced, though, your wishes may change. To avoid any confusion, it’s important to update your estate planning documents after your divorce is finalized. This will ensure that your former spouse is not involved in your estate plan, even if they were previously named as a decision maker or beneficiary. It’s best to work with an estate planning attorney to update your documents and choose new decision makers and beneficiaries.

Don’t Risk of Neglecting Your Estate Plan

An estate planning attorney can review any estate planning documents you have, whether from years ago or a prior marriage, including Wills, trusts, powers of attorney and beneficiary designations, and then help you create new documents for your current situation.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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Hospice care is a type of health care that patients with terminally ill conditions rely on at the end of their lives. This type of care focuses on pain management and emotional, spiritual, and familial support for patients nearing the end of their lives.

There are several options for receiving hospice care, including being cared for at home.  The type of intimate care a patient receives while in hospice is more conducive to being received at the patient’s home.  This becomes a team effort, and it helps to have a peaceful environment when receiving care.

Patients with serious illnesses like cancer, heart disease, dementia, kidney failure, or other fatal conditions benefit from hospice care.  This type of care can help the patient live a more comfortable life while decreasing the emotional burden of grief for families by preparing them for the loss of their loved one.

When Is Hospice Recommended?

Hospice care should not only be considered by those who have loved ones nearing the end of their lives.  While most of these services are generally reserved for people with six months or less to live, early hospice care can be beneficial for patients and their families as well.

You may wish to consider such services in the following cases:

– The patient has a serious decline in their physical well-being

– After a diagnosis of Alzheimer’s disease or dementia

– You have decided to forgo any treatment to improve your physical treatment or care for your illness

Who Makes Up a Hospice Care Team?

Your hospice team can consist of many different types of people.  Various professionals and volunteers may be involved in end-of-life care. Some of those you may see on your care team can include:

– Doctors

– Nurses

– Social workers

– Spiritual advisors

– Trained volunteers

Who Pays for Hospice Home Care?

Like any other health care option, these services can quickly become very expensive.  Fortunately, there are several ways to cover the cost, including:

Government Programs

Private Insurance

Charitable Organizations

Having a well written power of attorney that includes health care is an important part of a comprehensive estate plan.  I suggest that it may even be more important than setting up a Last Will and Testament, because an power of attorney for health care will help you and your agent manage your health care while you are still alive and possibly under hospice care.  It’s worthwhile to give your health care  some thought in advance.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.  www.moakandmoak.com

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The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

What are DECEDENTS?

Often we in the legal world forget there are terms we use that are not used in everyday conversations.  “Decedent” is one of those terms.  Decedent a legal term that refers to a person who has died with unsatisfied legal obligations.

At the end of their life, a decedent has some legal duties that must be fulfilled through a representative.  For example, decedents remain obligated to satisfy certain debts incurred during their life and file their last income tax return.

The word “decedent” is mostly used for estate planning purposes.  For example, you may see this term in a last will and testament, or in estate closure documents related to closing a deceased person’s bank account and filing their final income taxes.

In addition to finalizing an estate, if a person was a party in an active civil lawsuit before they died, the word “decedent” will be added to the party’s name in court documents to signify that a representative is continuing with the case.  I have had to assist families with loved ones that were a party to a lawsuit for personal injury and asbestos lawsuits.  In those cases, someone has to been assigned the legal authority to continue the matter when the “decedent” dies.

Obligations of DECEDENTS

Decedents have legal obligations after their death. Since they cannot perform these duties, the person they appointed before their death must meet any obligations.  These legal responsibilities must be handled according to state law if the deceased person did not name a representative before they died.

Duties of the Representative

Duties that someone has after they die that must be completed by their representative include the following:

– Notify banks, credit card companies, and other creditors about the death of the individual. Also, government agencies must be notified, including Medicaid, Medicare, and the Social Security Administration.

– File the decedent’s last will and testament with the probate court. The representative will also be responsible for representing the decedent’s estate in court.

– Pay any of their outstanding and payable debt.

– File income taxes.

– Open a bank account for the estate. The representative will pay bills, debts, and taxes from the new account.

– Distribute the estate’s assets to the heirs named in the decedent’s last will and testament, or ensure that the heirs at law receive the appropriate property if assets are passed down via intestate succession.

If you would like guidance on estate planning for yourself or for administering an estate following the death of a loved one, you should seek the advice of an attorney who focuses on estate planning and probate process to assist you with these matters.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

For most people, thinking about not being able to make financial decisions is bad enough.  But thinking about not being able to manage health care is even worse.  After all, money is just that: money.  But your health and health care is different.

So this week I thought I write about, what happens if you are no longer able to manage your health care?  What if you are incapacitated such as with dementia and can’t make health care decisions for yourself?  Who will make those decisions for you?

Two Options

You have two options: Plan ahead, or do nothing.  I do not advise doing nothing.

For planning ahead, you can choose who you want to make health care decisions for you if you’re not able to make those decisions yourself.  In Texas, you do this by creating an power of attorney for health care, which is sometimes called a health care power of attorney or a medical power of attorney.

Power of Attorney

In your power of attorney for health care, you name someone (your health care agent) to make health care decisions for you if you can’t.  These decisions include doing things like talking to doctors, scheduling health care appointments, consenting to medical treatment, picking up prescriptions and so on.

Who decides whether you’re incapacitated?  Again, you choose in advance who decides whether you are incapacitated.  You may have a doctor determine that you’re incapacitated. Many people choose to have a doctor make this decision, but you need not have a doctor make this decision.  You can also name a spouse, children, or someone else you trust.

Think of Your Health Care Needs in Advance or:

What happens if you don’t plan ahead?  If you don’t have an power of attorney for health care and you become incapacitated, someone such as a family member or loved one will have to file a case with the court to ask for them to be appointed as your guardian.  While we work with people to establish guardianships, I don’t advise this as a viable alternative to estate planning and creating an power of attorney for health care. This is because there are several problems with guardianship cases.

First, guardianship cases can be slow.  While it’s possible to get an emergency order if needed, guardianship cases often can take several months.

Second, guardianship cases are expensive compared to planning ahead.  Imagine a scenario where a person needs to be cared for.  Everyone agrees:  No one is fighting over whether the person needs a guardian, or who should be appointed as guardian.  For this “simple” case, attorney’s fees may range from $7,500 to $10,000.

The third problem with guardianship is that it’s public.  Everything that happens in court is public.  Plus, anyone who is an “interested party” to the person subject to the guardianship is entitled to notice of the case and has the opportunity to make their wishes and desires known.  Sometimes families are estranged from each other.  But the brother who you haven’t talked to in 10 years, and the parent that you haven’t seen in 5 years, are all entitled to notice of the case and have the opportunity to appear in court and make their wishes known.

Plan Ahead

For these reasons, I don’t advise that you do nothing.  Instead, it’s important that you plan in advance.

Having a well written power of attorney that includes health care is an important part of a comprehensive estate plan.  I suggest that it may even be more important than setting up a Last Will and Testament, because an power of attorney for health care will help you and your agent manage your health care while you are still alive.  It’s worthwhile to give your health care  some thought in advance.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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The statistics are staggering: most parents do not have Wills or other documents naming guardians for their children if something happens to the parents. Fewer than 50-75% of parents have named guardians for their minor children.

Why? One reason is likely lack of knowledge – some parents might understand that a Will is the traditional place to name guardians for children (and the thought of planning for death doesn’t thrill them), but haven’t considered that a Will only applies at death. With medical advances that keep people alive longer, it is more likely that an accident or illness will result in an individual’s incapacity, not death. A stand-alone guardian nomination is an additional document that addresses this modern reality by naming guardians for children whenever the parents are “unavailable,” whether by short-term, long-term or indefinite incapacity, or by death.

Another common reason parents do not do designate guardians for their children is that they might think “Well, I just assumed my kids would be with my mother,” or “Wouldn’t my kids automatically go to my brother?” Assuming that a certain family member would take over automatically might work if there are no other blood  relatives of either parent, or both parents’ extended families never disagree.  If that is not the case, however, you don’t want to take a chance on leaving your children in the middle of a dispute (litigation) about whom can best care for them.

The biggest reason parents do not  designate guardians for their children is that “no one feels right” to take their place. They start going through the obvious options and think, “this person isn’t perfect because A, that person isn’t perfect because B,” and so on. Or, in discussing the trade-offs, the spouses disagree on who to name.

First, think of people – there is no rule that guardians must be relatives – that are capable of fulfilling the role.  For a guardian, start with people that have the health, stamina, and patience necessary to care for your children. An older grandparent who is slightly physically impaired (e.g., uses a cane) could work for one mild-mannered 15 year old, but probably not for rambunctious two year old twins.  If your child is very involved in his school, sports, community activities, and/or religious organization and moving to where your sister (in-law) and family live would be an additional trauma for him, the family of his best friend might be a better choice if their child-rearing values are similar to yours.

Second, think about what you value most for your children – Family? Location? Religious observance? Lifestyle? Then, evaluate which people on the list best embody what you value most for your children.  If you are truly stuck, think of the worst person who could be named by a court to take care of your children. Thinking about who you don’t want, and why, can help you articulate what you do want.

Lastly, realize no one is going to be able to “take your place”.  In fact, the kind of planning we do keeps you in your place by providing instructions and guidance about what you want for your kids to the guardians, to the trustees managing how your money is spent on your kids’ behalf, and directly to your kids. By planning, you will be able to provide guidance to a less than ideal individual – a much better situation than having no plan and possibly family arguments or even foster care.

If you are part of the minority who has done their planning but it’s been some time since your documents were put in place, are the people still right?  Or have situations changed caused by marriage, separation, divorce, births, deaths, change in location, level of trust, type of relationship, etc.? If so, does it affect their ability to serve in the role for which you have named them?

As a lawyer my job is to give counsel to  clients on the choices the client has based on the law and the client’s circumstances.  If you are having a hard time deciding who to name as guardian for your children, or any of your other fiduciaries (trustee, health care power of attorney), I can counsel you.  Moreover, as a third party I can help spouses bridge their differences about who is the right person to be named guardian of their children.

If you’d like to learn more about naming guardians and estate planning, call our office today to schedule a time for us to sit down and talk.

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How does one go about initiating a guardianship?

Any interested party may file an application with the proper court requesting that a guardian be appointed for a person believed to be incapacitated.

What is the definition of an incapacitated person?

A person may be found to be incapacitated if due to a mental or physical condition he or she is unable to: (1) provide food, clothing, or shelter for himself or herself; (2) care for his or her own physical needs, or (3) manage his or her own financial affairs. A finding of incapacity will allow the person to be placed under guardianship. A minor person (someone under 18 years of age) and missing persons are also considered to be incapacitated.

Once a guardian is appointed, does the incapacitated person lose all rights and powers?

Not necessarily. A judge may appoint a guardian for an incapacitated person, but limit the guardian’s powers so that all rights and powers except those granted to the guardian are retained by the incapacitated person.

Who may serve as guardian?

The court will appoint a guardian for an incapacitated person in the following order of priority: (1) the incapacitated person’s spouse; (2) the person’s nearest kin; and (3) an eligible person who is best qualified to serve.

Do the types of guardians vary?

Yes. Generally, there is a guardian of the person and a guardian of the estate. The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. The guardian of the estate has the duty and power to manage the incapacitated person’s financial affairs. One person can fill both positions.

Who is not allowed to serve as guardian?

A person may not be appointed guardian if the person is a minor, a notoriously bad person, an incapacitated person, a person who is a party to a lawsuit affecting the incapacitated person (with some exceptions), a person who owed the incapacitated person money, unless it is repaid, a person with adverse claims to the incapacitated person or his property, an inexperienced or uneducated person, a person the court finds unsuitable, a person eliminated in a person’s designation of guardian, or a nonresident without a resident agent.

Are there costs involved in a guardianship?

Yes. These costs include attorney’s fees, filing fees, attorney ad litem fees, and bond premiums to be paid out of the incapacitated person’s estate. These fees will be quite substantial, so you must be prepared.

What rights are retained by the incapacitated person?

The incapacitated person has the right to receive a copy of the application for guardianship and other documents filed with the County Clerk. He or she is also entitled to be at the hearing to determine whether he or she is incapacitated.

Is an alleged incapacitated person represented by an attorney?

Yes. When a guardianship is filed, the court appoints an attorney ad litem to represent the interests of the alleged incapacitated person. The person can also retain his or her own attorney.

What happens at a guardianship hearing?

The person who filed the application must prove the incapacity through testimony and medical evidence. The alleged incapacitated person has a right to bring his or her own witnesses to court and also the right to speak to the judge. The alleged incapacitated person may also request a jury trial. The judge or jury will determine if the person is incapacitated.

How soon can a guardianship hearing be held?

The earliest date to schedule a hearing is the Monday following the expiration of 10 days after the alleged incapacitated person has been personally served with the application of guardianship.

Upon appointment, how does a guardian qualify?

The guardian must file an oath and post a bond in the amount set by the court to insure proper performance of his or her duties.

Does the guardian have reporting requirements to the court?

Yes. The guardian of the estate must file an inventory within 30 days of qualifying. The inventory must list all assets of the incapacitated person coming into the guardian’s hands and all debts owed to the estate. The guardian of the estate must file an annual account to report all receipts and disbursements. The guardian of the person must file an annual report on the location, condition, and well-being of the incapacitated person.

What if there is an immediate need for the appointment of a guardian?

A temporary guardian can be appointed without notice to the proposed incapacitated person if his or her person or property is in imminent danger. Usually a temporary guardianship will not exceed sixty 60 days. However, if a permanent guardianship application has been filed and is contested or challenged, the court may appoint a temporary guardian to serve as temporary guardian until the contested guardianship action is resolved.

Does the person for whom a temporary guardianship has been appointed have any rights?

Since that person is not presumed to be incapacitated, he or she retains all rights and powers not granted to the temporary guardian. He or she is entitled to be served with a copy of the documents that are filed. The court must appoint an attorney to represent the alleged incapacitated person. The court must hold a hearing no later than ten 10 days after the date of filing the temporary guardianship to determine whether there is a need for continuation of the temporary guardianship.

Pursuing a guardianship for a loved one can be an expensive and difficult process. An attorney can assist you in determining if a guardianship is appropriate for your particular situation. If you have further questions or are considering a guardianship for a loved one, you should consult your attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

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