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Mental Health and Guardianship: How to Get Help

I frequently receive phone calls from friends or family members of an individual suffering from a mental health crisis. Their question is the same, “Can I get a guardianship over them and force them to take their medications, or get psychiatric care?”  Or sometimes the question is whether they can get a trust or some other legal document to prevent the person from spending their money irresponsibly or giving it away. 

Although my heart goes out to these families, it pains me to tell them that guardianship is not a likely remedy and here is WHY:

Due to major changes in Texas guardianship law over the last five (5) years, it has become increasingly difficult to obtain guardianship over a disabled person. Statutory probate courts, which have the responsibility of overseeing these cases, are closely scrutinizing applications and applicants for guardianship. As a result, not only has obtaining a guardianship become challenging, but more costly.  

Applicants for guardianship (friends or family members of the individual) are required, by law, to consider feasible alternatives to guardianship and supports and services before they file for guardianship. For people suffering through a mental health crisis such as suicidal depression, a manic episode of bipolar disorder, psychosis, or a severe drug or alcohol addiction, there is at least one important alternative to guardianship that statutory probate courts also oversee: a mental health commitment. 

The process for an involuntary commitment to a psychiatric hospital can be found in Chapter 574 of the Texas Health Code. This process allows family members to alert the police and the court to situations where a person may need immediate psychiatric care if they are “likely to cause serious harm” to themselves or others. The policy behind this process is that with time and the right treatment, these individuals are usually able to return to a stable mindset. As such, guardianship is viewed as unnecessary under these circumstances and even an infringement of the individual’s constitutional freedoms. Additionally, courts encourage the use of power of attorney forms and supported decision-making to assist individuals dealing with short-term declines in mental health or borderline cognitive functioning, as a feasible alternative to guardianship.  

Guardianship, therefore, should be thought of as a long-term solution to severe mental decline. Generally, a probate court will approve a guardianship application when the individual is completely unable to care for themselves and/or their property and finances on a permanent basis. Medical conditions that tend to result in this finding include severe intellectual or developmental disabilities, traumatic brain injury, post-stroke dementia, and Alzheimer’s dementia. 

Attorney Adriane S. Grace regularly consults with families on guardianship, alternatives to guardianship, and supports and services including public benefits, and helps them navigate and implement these options to avoid costly guardianship proceedings where possible. She also assists families, when guardianship is necessary, to navigate the legal process in uncontested proceedings, and to defend the application, or applicants, in contested proceedings involving complex family dynamics. Contact Attorney Adriane S. Grace if you have questions about whether guardianship is available to you in Frisco, Prosper, Plano, McKinney, Dallas, & Allen Texas area.  

Featured Speaker

Attorney Adriane Grace Featured Speaker at the 2020 North Texas Probate Bench Bar Conference

The North Texas Probate Bench Bar is a yearly conference held in March during which time members from the probate bench and bar (judges and attorneys) from North Texas come together to hear updates on important legal topics in Estate Planning, Probate, and Guardianship. This year, Attorney Adriane S. Grace was selected by the planning committee to speak at a general assembly of the bench and bar on March 5, 2020 about “Social Security Rules the Estate Planning, Guardianship, and Probate Attorney Should Know.”

Featured Speaker

Attorney Adriane S. Grace featured speaker at the 2020 North Texas Probate Bench Bar Conference

As a Social Security Appeals Attorney and a practitioner in probate and guardianship law, Ms. Grace has identified overlaps in Social Security procedural rules and state laws on probate and guardianship. Ms. Grace used the speaking opportunity to educate local judges and her colleagues about these overlapping rules and how to navigate these issues as well as provided an update on new Social Security rules pertinent to their practice areas. As a former appellate attorney for the Social Security Administration, Attorney Adriane S. Grace possesses intricate knowledge of Social Security processes and procedure as well as the agency policies driving their rules. She is often called upon by colleagues practicing in many different areas of law for advice and assistance when their cases become impacted by Social Security issues.

The North Texas Probate Bench Bar conference is a well-attended event by estate planning and probate attorneys from Dallas, Collin, Denton, Tarrant, Rockwall, and Grayson counties as well as all the statutory probate judges and county court at law judges hearing probate cases in these counties. This year, there were approximately 300 attendees.