Celebrities like Jay Leno and Emma Hemming Willis (married to Bruce Willis) are speaking out about their experiences with guardianship and caregiving.
If you are caring for a family member with dementia too, a time will likely come when your loved one can no longer make decisions independently. At that point, the person with dementia will need a guardian or other support in managing their affairs.
Who Is Legally Responsible for a Person With Dementia?
Under Texas law, adults are legally responsible for themselves unless they are incapacitated. Incapacitated means that “because of a physical or mental condition, [the person] is substantially unable to:
- Provide food, clothing, or shelter for himself or herself; or
- Care for the person's own physical health; or
- Manage the person's own financial affairs.”
Not everyone with dementia is incapacitated. Early in the disease, a person might be able to manage their own affairs. As the disease progresses, the person might become incapacitated in some areas, like financial affairs, but retain their capacity in other areas.
When a person becomes incapacitated, a court may appoint a guardian to make decisions for the incapacitated person.
When is it time to consider guardianship? Consider these seven questions.
What Is Guardianship?
Guardianship is a legal relationship in which a person (the “guardian”) is appointed by a court to make decisions on behalf of another adult (the “ward”).
Learn more about adult guardianship and the legal process in Texas.
Do I Need an Attorney to Get Guardianship of an Adult With Dementia?
Yes. Most courts in Texas will require you to hire an attorney to get guardianship of another person. Although there are several types of legal matters where you are allowed to represent yourself, that rule does not apply in guardianship cases.
Guardianship is a complex legal procedure with specific requirements and timelines. An attorney experienced with guardianship and probate law can guide you through each step, ensuring everything is done correctly and according to the law.
Can A Person With Dementia Object To Guardianship?
Yes, a person with dementia can object to guardianship. Even if a person has been diagnosed with dementia, they retain certain legal rights, including the right to object to a guardianship.
However, the ability to object may be limited depending on the severity of the dementia. A medical evaluation, included as part of the guardianship process, provides the court with information about the individual's mental and physical condition and helps determine whether they are capable of making decisions for themselves.
If the individual is unable to communicate their wishes effectively or understand the implications of guardianship, it may be difficult for them to mount a successful objection.
It's important to note that if a court finds that the individual is incapable of making decisions for themselves, a guardianship may be necessary to protect their best interests.
If you or someone you know is facing a guardianship proceeding, consult with a probate attorney with experience in guardianship. They can help you understand your rights and options and provide you and your family with guidance on how to proceed.
Planning for Dementia
If you (or a family member) are facing a dementia diagnosis and want to help prepare your family now, consider these alternatives to guardianship:
- Financial power of attorney: Appoint a trusted individual to manage your finances and make decisions about your property.
- Healthcare power of attorney: Designate someone to make medical decisions on your behalf if you're unable to do so.
- Supported decision-making agreements: A legal agreement that empowers individuals with disabilities, including those with dementia, to make their own decisions while receiving support from trusted individuals. Unlike traditional guardianship or conservatorship, which can limit an individual's autonomy, supported decision-making agreements provide a more flexible and personalized approach.
Learn more about alternatives to guardianship for adults with dementia.
We’re Here to Support Caregivers and Their Families
The attorneys at Hendershot Cowart P.C. are trusted advisors on guardianship and guardianship alternatives for people with dementia. Serving families in Harris, Fort Bend, Montgomery, and Galveston counties, we’ll give you straightforward advice and create an action plan to protect your loved one.
