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Ask the Lawyer

Posted by: tdt -

Question: My dad has been living with a woman in another state for about 14 years. He’s elderly, and so is she. He is now living in a nursing home near me. I’ve been receiving his pension for many years and paying all of his bills in the other state, including the utilities, a payment for the van that has a wheel-chair lift on it, all of his doctors and all of his living expenses for him and his girlfriend. My dad never chose to get married to this woman, and he was very adamant about not getting married. I want to file for guardianship over my dad as he can’t communicate with anyone any longer. The girlfriend is 71-years-old, and my dad is in his 80’s. I just feel it is too hard for her to try to care for him, and I also am beginning to think she’s just wanting to keep the house my dad owns outright in the other state. She is saying that she wants guardianship over my dad. Is she going to be able to get a guardianship in Texas over my dad? He has lived here in the nursing home for three months. Also, she is trying to claim they are married because Texas is a common law married state. Is that true?

Answer: The problem is two-fold. First, is an elderly man living in a nursing home common law married to a woman who resides in another state, and second, can that woman get a guardianship over him in Texas? Dealing with the marriage issue is fairly straight forward. A common law marriage, called an informal marriage, may be established in Texas if the parties meet all three requirements for an informal marriage. Those are living together in Texas, holding themselves out to others as being married to one another and having an agreement between themselves to be married.

It does not appear that this potentially married couple can pass the three-pronged test. They do not reside together within the state of Texas. If the man has been residing in a nursing home during his entire residency in Texas, and the woman continues to reside in a home in another state, then these two have not resided together within the state of Texas. Further, if this man is unable to communicate any longer then it does not appear that he had the capacity to form an agreement to be married. That’s not to say that he didn’t have that capacity in the past, but that is irrelevant if the last time he had capacity he wasn’t living in Texas. The agreement to be married portion of the common law marriage test must have been met before the man became unable to communicate and agree to make decisions. He also would have had that agreement and then lived with the woman in Texas. Having a residence together in another state does not meet the requirement of living together in Texas. Finally, it does not appear that the man has ever held himself out as married to the woman. The woman now stating, after 14 years, that they are married sounds quite suspect. The man and the woman are not married under the circumstances described because they do not reside together in Texas and they do not have an agreement to be married.

Residency is another issue that comes up when pursuing a guardianship. A guardian may make decisions on where a ward (the incapacitated person) resides once the guardianship has been approved. A person who files an application to be named guardian over another person must have some connection with that person. Spouses and children are the natural and obvious choices for guardians, as they should have the most concern for the ward’s well being. Guardianships may be created over the person and the person’s property and most of the time guardians do have control over both person and property. Situations where some other person might manage the property of a ward might be if the ward is the beneficiary of an existing trust and a trustee is already named, or if the guardian of the person does not request to be named the guardian of the property.

In the situation described, the daughter is the natural choice for the appointment as the man’s guardian. The court will not grant a guardianship for a ward who does not reside within the state; however, they might appoint a guardian who resides somewhere else. In the case described there is a willing person applying for guardianship, which has a biological connection to the ward and is physically close at hand to take care of the needs of the ward. The payment for the services of the nursing home could be handled by a different person, but if that’s not necessary, then the court may choose to appoint the person who can handle all of the needs of the ward with the least amount of burden. Unfortunately, the woman that this man has been living with has several problems with a request to be appointed the guardian. She has no familial relationship to the ward, she continues to live another state (more than 1,000 miles away), does not and has not had control over the ward’s finances in the past as the daughter has, and is elderly.

A guardianship is a huge undertaking. The guardian must account to the court annually regarding the ward and the ward’s estate. Thorough accurate records must be maintained to protect the ward’s property. Often, guardians hire attorneys to handle the annual accounting each year and provide the attorney with all of the receipts that have been collected in the previous year. An accounting must list all of the property that has come into the ward’s estate such as social security benefits, pension or retirement benefits and the like. Each and every expenditure on behalf of the ward, such as the monthly cost of the nursing home, items purchased for the ward’s benefit no matter how small the item or cost or even the cost for a hair cut, must be shown in the annual accounting. It would be more difficult for someone out of state to handle the day to day needs of a ward who resides in a nursing home in Texas. The Court must consider which guardian will better suit the ward. The ward’s best interests are always the key factor when considering who to appoint when more than one person seeks appointment. Under the circumstances described, it is unlikely that the girlfriend will be named guardian of this ward.

This article is meant for informational purposes only and not as a substitute for sound legal advice.