Tamborello Law Blog

Just because someone needs a legal guardian does not make them “crazy”

Having served on numerous occasions as an attorney ad litem for proposed wards in guardianship cases, I often encounter a hostile reaction from the proposed ward, who believes that the person filing the guardianship (and especially the doctor who validates it) thinks they are crazy.

A guardianship case is not the same as a mental commitment case. A person may be in need of a guardian if that person is “incapacitated.” The Texas Probate Code defines an “incapacitated person” as “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.” One can be totally without capacity or partially without capacity.

As you can see from the definition, “incapacitated” does not necessarily mean that the person is “crazy” or “insane” and should be institutionalized. Many proposed wards are in the early stages of dementia-related illnesses such as Alzheimer’s disease. They are often able to communicate and express their wishes or feelings. However, they are often suffering from memory problems which place them in danger either medically or financially. For example, many proposed wards claim they either do not need the medication they have been prescribed or that they can administer their own medication. Most of the time, however, they are not able to do so. In addition, other proposed wards claim that they can pay their own bills and handle their own bank accounts. However, upon closer inspection of their papers, you often find unpaid bills, delinquency notices, checks out of order, and bank statements which differ from the check register.  Sometimes, the inspection reveals financial exploitation.

Therefore, if it becomes necessary to file for guardianship over your friend or loved one, you should try to explain to them that your motivation is to help them to handle their affairs and to look after their best interest, not to lock them up in a psychiatric ward. If, on the other hand, the person has become a danger to himself or to others, then a mental commitment proceeding may also be appropriate. However, the two are not the same thing.