Last week’s column discussed the considerations 70-year-old Penelope should give to determining the persons she would choose to serve as her guardians of her person and her estate if she became incapable of handling her own care and financial affairs. In addition to the considerations mentioned, Penelope needs to understand the type facts and circumstances that disqualify a person from serving as a guardian in Texas.
Penelope cannot name her best friend’s sixteen-year-old granddaughter as her guardian because minors are not allowed to serve as guardians. She cannot name her long-time gentleman friend as her guardian because he has mental and physical disabilities that would disqualify him.
Penelope cannot appoint her excellent and devoted housekeeper as her guardian because, although this would not be the case with all domestic employees, Tina lacks the education and experience that would be required to handle either medical or financial decisions required by a guardian.
Penelope should be careful not to name someone whom a judge would be likely to find “unsuitable.” Because judges have wide discretion in determining “unsuitability,” Penelope should disclose to her attorney any facts about a person she is considering that might raise questions in a judge’s mind. The attorney will be able to assist her in assessing whether a person might be disqualified by the court.
Texas law was amended in 2014 to require courts to disqualify a person from serving as a guardian if the person’s conduct has been determined to be “notoriously bad.” Again, the court has discretion in making that determination. However, under the law, it is presumed that a person’s conduct is “notoriously bad” if one has been convicted of: (1) any sexual offense; (2) aggravated assault; (3) injury to a child; (4) making terroristic threats; (5) continuous violence against the family of the ward or incapacitated person.
I believe Penelope would be taking too high a risk by naming as her guardian a person suspected of having engaged in any of the offenses named above, even if the person has not been convicted of the alleged crime.
Any person who has a lawsuit against Penelope, one who is indebted to her or who has a claim adverse to her or her property will be disqualified from serving as her guardian.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.