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San Antonio Express-News, August 19, 1994

Can Loss of Legal Rights be Reversed?

© 1989-2004, Paul Premack

Dear Mr. Premack: I have a friend who is confined, against her will, in a nursing home. Her ex-husband and his sons forced a guardianship on her several years ago when she was ill. They stripped her of her rights and her dignity. Now that she has recovered, she is still deprived of her rights. Her money is gone and she is utterly helpless. Is there an ombudsman for the elderly in San Antonio? Is there a way that I can help eliminate her guardianship? Thank you for your advice. -- M.R.C.

Your friend's situation is difficult, both emotionally and legally. In the past, when a Guardianship was created it often ran unchecked until the death of the Ward. Even if the Ward recovered her health, it was (and is) difficult to stop the Guardianship.

By law, a Guardian is required to use the Ward's money only for the benefit of the Ward, and only after obtaining permission from the Judge. If the Guardian misuses the money, it is an illegal act. The Court can impose liability on the Guardian and the insurance company that issued the Guardian's bond. Another safeguard is the legal requirement that the Guardian file an annual report with the Court. For various reasons some Guardians have gotten by without filing reports.

The Guardianship Code was changed in 1993 to impose a penalty on the Guardian. If the Guardian doesn't file an annual report, the letters of Guardianship will not be renewed. Additionally, the 1993 law added a provision allowing the Judge to fine the Guardian up to $1,000 for failure to file the required annual account. Together, these two new provisions make it clear that a Guardian is not allowed to abuse the Ward nor allowed to abscond with the Ward's assets.

It is possible for you to terminate or limit the Guardianship. Under the new Code, a Guardianship can be tailor-made to limit the Guardian's powers and maximize the Ward's independence. Any "interested person" can ask that the Guardianship either be ended or that the Guardian's powers be limited. You can write an informal letter to the Court on your own, but hiring an attorney is probably the more effective route.

San Antonio does have a Nursing Home Ombudsman program. It is operated through the Alamo Area Council of Governments (AACOG) and can be reached at 225-5201. Frequently, the Ombudsman can help iron out difficult relations between the Nursing Home and patient (or the patient's family). However, the Ombudsman is not the right place to turn to complain about the Guardian. Complaints about the Guardian that should made directly to the Probate Court.

Prior column: Estate Planning & Divorce - 1993
Next column:
Mom can't do this! (Can she?)

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.


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