{"id":13056,"date":"2025-01-26T06:00:21","date_gmt":"2025-01-26T12:00:21","guid":{"rendered":"https:\/\/legaltalktexas.hammerle.com\/?p=13056"},"modified":"2025-06-18T12:06:21","modified_gmt":"2025-06-18T17:06:21","slug":"contested-guardianships-can-be-complicated","status":"publish","type":"post","link":"https:\/\/hammerle.com\/legaltalk\/adult-guardianship\/contested-guardianships-can-be-complicated\/","title":{"rendered":"Compassion With an Edge: Contested Guardianships Can Be Complicated"},"content":{"rendered":"

This is the second of a three-part series.<\/span><\/i><\/p>\n

At the heart of every <\/span>guardianship<\/span><\/a> proceeding is the person in need of protection: the proposed ward. In a just world, everyone involved in guardianship would be working for the ward\u2019s best interests.<\/span><\/p>\n

The world is not just.<\/span><\/p>\n

Too often, guardianship is brought or opposed for a personal motive completely divorced from the ward\u2019s best interests. What type of motive? Usually greed, power, convenience, or revenge. Family members are pitted against each other. Business partners fight for a competitive edge. Creditors, like nursing homes, try to make a money grab.<\/span><\/p>\n

Their goal? Have the ward declared legally incapacitated, take away the ward\u2019s right to make decisions, and give those rights to a guardian.<\/span><\/p>\n

Advocates for the Ward<\/span><\/h2>\n

Attorney Ad Litem (AAL)<\/span><\/h3>\n

Fortunately, the ward does not have to fight alone. The court where the guardianship is filed is required to appoint an <\/span>Attorney Ad Litem (AAL)<\/span><\/a>. The AAL serves as the ward\u2019s attorney and defends against the guardianship.<\/span><\/p>\n

An Investigator<\/span><\/h3>\n

The court may also appoint an investigator who reports his or her findings on the need for guardianship. (A statutory probate court is required to appoint an investigator).<\/span><\/p>\n

Guardian Ad Litem (GAL)<\/span><\/h3>\n

The court may also appoint a Guardian Ad Litem (GAL) to represent the best interests of the ward. This is a different role than the AAL, who is required to advocate for the ward. In contrast, the GAL may take actions or make recommendations against the ward\u2019s express wishes.<\/span><\/p>\n

The GAL and AAL are usually given the right to access the ward\u2019s medical, psychological, and financial records.<\/span><\/p>\n

Person vs. Estate Guardianships<\/span><\/h2>\n

There are two types of guardianships: person and estate. Typically, a <\/span>guardian of the person<\/span><\/a> makes decisions regarding residence, medical treatment, and access to the ward, and can manage up to $20,000 of the ward\u2019s funds. The guardian of the estate takes control of and manages the ward\u2019s finances.\u00a0<\/span><\/p>\n

The powers of the guardians are determined by written court order. If a right is given to a guardian, then the same right will be removed from the ward.<\/span><\/p>\n

There are many areas in which guardianship can be contested, such as incapacity of a ward, necessity of the guardianship, ward\u2019s rights to be removed, powers to be given to the guardian, and choice of the guardian.<\/span><\/p>\n

Contested Guardianship Strategies<\/span><\/h2>\n

Over the years, several strategies have emerged that are fairly common in <\/span>contested guardianship<\/span><\/a> proceedings.\u00a0<\/span><\/p>\n

Temporary Guardianship<\/span><\/h3>\n

This is used when the ward is at risk of immediate harm and cannot wait until a <\/span>full guardianship<\/span><\/a> proceeding is finalized. The application must be heard within 10 days of filing.<\/span><\/p>\n

Temporary Restraining Order<\/span><\/h3>\n

This is an <\/span>ex parte<\/span><\/i> (without notice to the other side) order where the court restrains someone from taking adverse action against the ward. The order is good for only 14 days. It is normally followed up with a temporary injunction action requesting longer relief.<\/span><\/p>\n

Motion in Limine<\/span><\/h3>\n

This is a motion requesting the court find that a party has an adverse interest in the ward. If granted, that party cannot pursue or contest the guardianship application.<\/span><\/p>\n

Management Trust<\/span><\/h3>\n

This <\/span>type of trust<\/span><\/a> is used to hold and manage a Ward\u2019s estate. It\u2019s created by the court and considered a least-restrictive alternative to establishing a guardianship of the estate for the ward.<\/span><\/p>\n

Rule 12 Motion<\/span><\/h3>\n

This is filed when there is a question regarding an attorney\u2019s authority to represent a party. It is normally used when a private attorney appears in a case and purports to represent the proposed ward.<\/span><\/p>\n

Hammerle Morris is Here to Help With Adult Guardianship<\/span><\/h2>\n

A contested guardianship can be expensive and messy for the parties, but who always pays the highest price? The ward.\u00a0<\/span><\/p>\n

If you or a loved one have questions about guardianship, schedule a <\/span>consultation<\/span><\/a> with our team of expert attorneys today.\u00a0<\/span><\/p>\n

And don\u2019t forget to read the other two parts of this guardianship series:\u00a0<\/span><\/p>\n