Frequently Asked Questions
Do you have questions about estate planning or the probate process? Do you need to know more about family law in Dallas? Are you wondering if you have a personal injury case? Are unsure if you need a lawyer?
The Ashmore Law Firm, PC provides the answers to frequently asked questions (FAQs) about estate planning, probate law, family law and personal injury law. Please select a category from the box below to narrow your FAQ search.
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What is Incapacity?
A person can be incapacitated short term or long term. A person can be incapacitated at any age. A person can have the ability to make some of their own decisions yet still be incapacitated. So, how does that work?
According to the dictionary, the word incapacity has many definitions. One from Webster's Dictionary is "the inability to understand information presented, appreciate the consequences of acting - or not acting on that information, and to make a choice."
The legal definition is rather different. In order to understand the legal definition, we look to the Texas Estates Code, Sections 22.016 and 1002.017.
"Incapacitated person" means:
- (1) a minor;
- (2) an adult who, because of a physical or mental condition, is substantially unable to:
- provide food, clothing, or shelter for himself or herself;
- care for the person's own physical health; or
- manage the person's own financial affairs; or
- (3) a person who must have a Guardian appointed for the person to receive funds due the person from any governmental source.
It is very important to understand an individual may be declared medically incapacitated, but that has no legal effect. Until there is a finding of legal incapacity, a person maintains all rights and enjoys the same privileges of anyone that has capacity.
A Caretaker is Isolating My Loved One -What Should I Do?
If you notice a caretaker beginning to isolate a loved one from their family and friends, there may be a few options. One would be to contact Adult Protective Service or the Elder Exploitation and Financial Service. If not, it may be necessary to begin Guardianship proceedings.
For additional information and options, we reccomend speaking with a qualified Guardianship attorney.
Does My Loved One Need a Guardian?
Your loved one may be in need of a Guardian if you can answer yes to any of the following questions:
- Do you know someone who is suffering from Alzheimer’s disease or Dementia and is unable to make their own medical or financial decisions?
- Do you know an elderly person who is susceptible to fraud and undue influence, whether it be by a family member, caretaker, or “new friend?”
- Do you know someone who was born with Down Syndrome and is over or about to turn 18-years-old?
- Do you know someone who has been diagnosed with a Mental Illness and is not always able to make their own medical or financial decisions?
- Do you know of a minor child (a child under the age of 18) whose parent or parents are recently deceased?
- Do you know someone who is suffering from a medical or physical disability that has left them unable to care for themselves?
A Guardianship is a legal process that is used when one can no longer make safe or sound decisions about his or her person or property. Keep in mind that even though you feel someone is incapacitated and not able to make their own decisions, this does not make it so. The only way a person can be declared legally incapacitated is through the legal process of a Guardianship. With that being said, we consider a Guardianship to be the last resort. It can be a time consuming and expensive process. Because of this, there are a few alternatives that you may want to consider first.
Learn more about Guardianship in our free book, Is Your Loved One in Need of a Guardian?
Who Can be Appointed to Serve as a Guardian?
I’d like to start out by saying that it is very important to give careful consideration when designating who you would like to serve as the guardian of your estate and the guardian of your person.
Why you ask? Because there is not an absolute clear cut answer as to who is qualified to serve as a guardian and who can be disqualified to serve as a guardian. The only constant is that in order to be a guardian you must be over the age of 18.
The Court has significant leeway when deciding who to appoint as a guardian of an estate or person. For example, according to the Estates Code, a person may not be appointed as a guardian if a Court finds them to be “unsuitable” or if their conduct is “notoriously bad." This is one of the many reasons why it’s so important to meet with a qualified guardianship attorney to get your questions answered with respect as to who can and who cannot be appointed as a guardian.
My minor child was listed as a beneficiary on my parents’ life insurance policy, but the insurance company won’t release the money. What can I do?
Although you are the parent, the insurance company will not release funds to any minor child. You will need to either institute Guardianship proceedings, or have the funds placed in the court registry until your child reaches age 18. At that point, the funds will be given directly to your child.
For more information, read our article, The 1 BIG Problem with Designating a Minor as a Beneficiary.
What do I do if my parents are becoming confused and cannot handle their finances?
Your parents have the option to sign Power of Attorney Documents to appoint someone to handle their finances and/or their medical decisions. However, if they do not have the capacity to understand what the documents mean, it may be necessary to begin Guardianship proceedings.
My son or daughter is diagnosed with a mental illness and refuses to take medication, what can I do?
If he or she is a danger to himself or herself, or anyone else, call 911 or obtain a Mental Illness Warrant. If he or she meets the criteria, he or she will be taken to a hospital, which would begin the Mental Illness Commitment process. Part of this process will be to file an application for court ordered psychiatric medication. Keep in mind that he or she would have to meet the necessary criteria. Contact us for additional information on this process.
What does it mean to be legally incapacitated?
In a guardianship proceeding, the court will appoint a guardian to protect the interests of an incapacitated person.
An incapacitated person means a person under the age of eighteen (18) years, or an adult individual who is unable to provide food, clothing, or shelter or unable to manage their financial affairs.
An individual may be declared medically incapacitated, but that has no legal effect. Until there is a finding of legal incapacity, that individual maintains all of their civil rights and enjoys all of the same privileges of a fully capacitated individual.
Texas Probate Code §§ 3(p) and 601(14) gives us the legal definition of incapacity.
"Incapacitated person" means:
(A) a minor;
(B) an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs; or
(C) a person who must have a guardian appointed to receive funds due the person from any governmental source.
When a Court finds an individual to be legally incapacitated, they must also find whether that legal incapacity exists as it relates to their person, or if it also encompasses their estate.
What is a Guardianship?
A guardianship is a court process whereby the court appoints someone who has legal responsibility over the care and management of a person, or estate of an incapacitated individual who cannot act for himself/herself.
Having the knowledge about guardianship can help you make the right decisions for your loved ones.
What is the difference between guardianship and adpotion?
A guardianship is the legal process where someone is appointed to assume legal responsibility over the care and management of a minor or estate of an incapacitated individual who cannot act for himself/herself. Guardianship can be temporary or permanent.
A guardianship of a minor child becomes necessary if that minor child is entitled to receive any assets under a Last Will and Testament or if they were designated as a beneficiary on a life insurance policy or IRA, etc. A guardian of the estate is necessary because a minor child cannot legally own any real property or be entitled to receive any assets. A parent is always the natural guardian of the person of a minor therefore a guardian of the person of a minor is only necessary when the minor's parents are deceased or unable to care for the minor.
In a guardianship proceeding, the court will appoint a guardian to protect the interests of an incapacitated person. An incapacitated person means a person under the age of eighteen years, or an adult individual who is unable to provide food, clothing, or shelter or unable to manage their financial affairs. There are two types of Guardianships. A Guardian of the Person is responsible for the care and maintenance and personal needs of an incapacitated person. A Guardian of the Estate is responsible for all financial matters of an incapacitated person.
An adoption is the legal process when an individual assumes all the rights and responsibilities involved in parenting and caring for a child. Adoption permanently relinquishes the rights and the responsibilities of a child's biological parents.