INTRODUCTION
It is becoming increasingly evident that our population is aging. Within the next thirty years, one out of every five Texans will be above the age of sixty. The need for guardianships results when persons failed to properly plan for potential incapacities or who, despite their planning, become incapacitated, and are in need of a responsible person to be designated by a court to handle their affairs. Working in a law office which deals with persons who, because of a variety of circumstances, suffer from incapacities which render them unable to handle their own affairs presents unique challenges. Neither a law school nor paralegal education can properly prepare you for working in a guardianship practice; skills related to guardianships are acquired as a result of on-the-job training. The objective of this article is to educate legal practitioners as to the unique nature of a guardianship practice.
INITIATION OF A CASE
Many of our cases result from referrals for guardianship from investigative agencies and service providers who identify incapacitated persons who may be incapable of managing their own affairs. The legal assistant is usually the person who receives the initial referral. The facts contained in the referrals are often horrible - people who are having their money stolen, who are having their property taken, and who have suffered from self-neglect or caretaker neglect. The legal assistant alerts the attorney to the referral and both initially discuss the case.
THE INCAPACITATED PERSON
One of the unique aspects of the guardianship practice is that the legal assistant very seldom actually meets the person who is the subject of the guardianship proceeding. The incapacitated persons are often living in nursing homes or foster homes and are unable to come into the office. The legal assistant's contact is usually with the family member, friend, or independent person or agency, whichever is to become the guardian. However, the legal assistant often feels as if he/she knows the wards because of the details learned about their lives. The attorney always sees the incapacitated person prior to the hearing so that the attorney can ascertain the nature of the case and the alleged incapacities.
THE FAMILY AND FRIENDS
The Texas Probate Code requires that notice be sent to certain family members if they can be identified. Families in guardianship cases can be very easy or difficult to deal with. In a "happy" guardianship case, the family is in agreement about who will be the guardian and how the guardianship duties will be performed. The more difficult cases occur when the family is dysfunctional and cannot come to an agreement on how the affairs of the incapacitated person are to be handled. Family and friends are often emotional about personal and monetary issues related to the incapacitated person-either because they are truly concerned about the person's well-being or, perhaps, because they have a personal stake in the outcome of the case. Family and friends can make a guardianship very easy or extremely difficult depending on the nature of the case.
THE CLIENT/GUARDIAN
One of the most significant challenges facing a guardianship practice is determining whether a prospective client would be an appropriate guardian for an incapacitated person. The responsibilities of a guardian are numerous and onerous-ranging from ensuring that a person lives in an appropriate environment to discharging the guardian's fiduciary duty to properly manage the client's property and estate. The attorney and legal assistant generally will initially meet with the prospective client/guardian together and, after the initial meeting, will "compare notes" and discuss the comfort level each feels about the motivations or agenda of the applicant. This initial determination is crucial since, once a person is appointed as guardian, the court entrusts the guardian with significant personal and monetary powers.
THE ATTORNEY AD LITEM
Texas law requires that an attorney ad litem be appointed for every alleged incapacitated person in every guardianship proceeding. It is the responsibility of the attorney to provide the attorney ad litem with all information which may be necessary to enable the attorney ad litem to understand the true facts of the case and to make an informed decision as to the best interest of the alleged incapacitated person. The attorney ad litem will often call for additional information related to the case, such as names, addresses, medical records, and copies of documents. It is generally the legal assistant's responsibility to ensure that the attorney ad litem has all information to which he/she is entitled. A guardianship proceeding can be delayed or aborted if the attorney and legal assistant fail to provide the attorney ad litem with necessary information.
THE COURT
One of the truly unique aspects of a guardianship case is that,once the case is initiated, it more often than not will last for the duration of the incapacitated person's life. There are active guardianship cases in our El Paso County Probate Court which have been in existence for over fifty years. The nature of guardianship cases, therefore, necessitates ongoing court involvement with not only the guardian but, more directly, the attorney and legal assistant representing the guardian. Most actions taken by the guardian, such as the filing of inventories, accountings, and approval of expense requests must be approved by the court on an ongoing basis. Because the legal assistant is more often in the office when a call from the court may come, and because the legal assistant is generally more familiar with the file documents, the legal assistant may be called on by court personnel to immediately initiate a response to a request by the court. The legal assistant's role in this regard is vital.
THE HEARING
The legal assistant will assist the attorney in preparing the necessary documents for a guardianship hearing - the application for guardianship, notice letters, medical evidence, the order appointing guardian, the oath, and other related documents. However, it is only in certain select, document-intensive cases that the legal assistant will actually attend the hearing with the attorney. By the time of the hearing, the attorney will have met the alleged incapacitated person, staffed the case with agency workers and fact witnesses, conversed with the attorney ad litem, and performed other tasks necessary to properly prepare for the hearing. After the hearing, presuming the applicant is appointed as guardian, the attorney will meet with the legal assistant in order to initiate any additional tasks assigned by the court. It is at this point that the ongoing responsibilities of the guardian-and the guardian's legal counsel-begin.
CASE MAINTENANCE
The Probate Court usually prefers that the attorney's role in the maintenance of a guardianship case diminish after the initial hearing and filing of an inventory and appraisement of the estate. The Probate Court prefers this approach as it conserves funds for the maintenance of the incapacitated person. By necessity, appropriate routine tasks such as preparation of routine documents and occasional client contact are handled by the legal assistant. More substantive and extraordinary situations will be handled by the attorney. The attorney, legal assistant, and guardian must work together in preparing required annual accountings and reports on the condition of the incapacitated person so that the appropriate documents may be filed as required by law.
CLOSING THE CASE
It is often much easier to get into a guardianship than it is to get out of one. Generally, a guardianship will terminate upon the incapacitated person regaining capacity or upon the death of the person. When the time comes to terminate a guardianship, a final accounting must be filed if there is an estate and the estate assets must be forwarded to the appropriate person(s) as designated by the Probate Court. It can take months to resolve a guardianship which has unresolved issues related to the manner in which the guardian handled the ward's and/or managed the ward's estate. Interested persons may file objections to the guardian's final reports and accountings. Tax issues and indebtedness may further complicate matters. The attorney and legal assistant must be candid with each other, the client, and the court about irregularities which may exist that require resolution prior to closing the guardianship. In many cases, the guardian will never again appear before the Probate Court. However, the guardianship attorney and legal assistant will have to face the Court over and over again, thus requiring the utmost in candor and integrity in resolving the remaining issues in the guardianship case.
AN ATTORNEY'S PERSONAL OBSERVATIONS OF THE GUARDIANSHIP PRACTICE
I have previously practiced as a briefing attorney with an appellate court, as an insurance defense attorney, and as a general practitioner prior to primarily devoting my efforts to the guardianship practice. Engaging in this unique practice of law is quite fulfilling-we are truly in the business of saving human lives. However, the guardianship practice is not an eight-to-five job; it often requires working late evenings and on weekends and holidays. Emergency temporary guardianships may arise which require action within hours of the case referral. The guardianship attorney must be prepared to temporarily drop everything in order to work on a case which requires immediate attention. The guardianship attorney cannot handle this kind of practice with any volume without the assistance of a good paralegal. If the guardianship attorney can identify and train a legal assistant who is willing to learn the intricacies of a guardianship practice, a profitable practice can be established. Although the guardianship practice will, at times, keep the attorney and legal staff awake at night, the legal professionals working on these cases can often sleep well knowing they have left people in need of guardianship services in a better place than before the guardianship commenced. A caring, efficient legal assistant is an invaluable asset to this process.
Terry W. Hammond is an attorney with a private practice in El Paso, Texas. Lorena Fang is his legal assistant.