My father is in a vegetative state. How do I become his guardian?

Recently on our legal forum an individual asked, “My father has entered into a vegetative state. My cousin, who is a nurse, has started taking over care of him. I am not pleased with some of the decisions she has made. What rights do I have to care for my own father?”

Apply for a guardianship for your father

Ideally, all individuals would be prepared for all impending medical crisis and would have created a durable power of attorney or implemented medical directives before any type of debilitating illness or injury occurred, leaving them incapacitated and unable to care for themselves.

Unfortunately, however, many people fail to plan leaving their family members or the state scrambling after an unexpected accident has occurred. If this has happened to you and your family, however, there are legal steps you can take after an illness or accident to ensure your father receives proper medical care. This legal process is called a guardianship, and it is the legal tool you will need to request to ensure you are the decision maker for your father.

What does a guardian do for their ward?

Guardianships are established to allow the person cared for, often referred to as the ward, as much freedom and independence as possible. For some wards this might mean that their guardian is simply tasked with paying their monthly bills or ensuring they receive the proper medical treatment.

For other wards, however, much more encompassing services may be needed. For example, if your father is in a vegetative state he will be unable to care for himself and will need a guardian who is able to organize a full range of services for him.

You might, for instance, be required to make financial decisions, medical decisions, manage his assets, and find someone to care for him. Additionally, you would be required to provide periodic updates to the court about the status of his condition.

Has the cousin been appointed as your father’s legal guardian?

As mentioned above, the state may choose the ward’s guardian or the guardian may be named through another legal document prior to death. The first step you need to take if you are unhappy with the care your father is receiving is to find out the legal status of his guardianship. For example, was the cousin appointed as legal guardian by a court or by your grandfather prior to his incapacitation?

Assuming the cousin qualifies to be a guardian (i.e. they are 18 years of age, do not have a criminal record, and they are not incapacitated) and they have been appointed by the court or the ward chose them through a durable power of attorney or will, you may not have any control over the decisions they make for your father, especially if those decisions are within the scope of their guardianship directive.

If, however, you believe the decisions they are making are illegal or outside of the scope of their court-appointed responsibilities, you may need to seek legal help and determine if the guardianship can be terminated.

Can a guardianship be terminated?

There are legal reasons that a guardianship can be terminated. For instance, if the guardian failed to provide adequate social, financial, or physical care or abused their role as guardian you could file a motion to terminate their guardianship. If you do decide to take this step, however, you will want to talk to a lawyer who can represent you at the hearing.

No one has been appointed guardian for your father

Now, if after investigating the situation you learn that your cousin simply began caring for your father but had not legally been appointed as the legal guardian, you may apply to become his guardian by taking the following steps.

Remember state laws vary. Below are the steps required in the State of Texas. Review your state laws for more information about legally requesting guardianship.

  1. File an application for Appointment of Permanent Guardian.
  2. File the application in the county where the proposed ward resides. Include documentation of a thorough examination performed within the past four months by a physician licensed in Texas.
  3. The citation is served to the proposed ward by the court.
  4. An investigation is completed by the court to determine guardianship responsibilities. A report is then filed with the court.
  5. Attend the guardianship hearing.
  6. The court will determine at the hearing who should be appointed guardian and what duties they will be required to complete.

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