The term incapacitated means an individual does not have the capacity or the ability to accomplish the daily necessities of their life. This state often occurs due to injury or illness and may be used in the same manner as the term disabled.
It is important to note, however, that an individual may have a disability without being incapacitated. In the State of Texas, legal incapacity is defined as an individual who, because of a physical or mental condition, cannot provide for their own basic needs, including food, clothing, and shelter.
In addition, an incapacitated individual is substantially unable to care for their own physical health or to manage their own personal finances.
If a Person Is Incapacitated, a Guardian Must be Put in Place by the Probate Court
Once an individual becomes legally incapacitated in the State of Texas, the family will often seek to put a guardianship in place. A guardianship is a relationship that is created and monitored by a court that takes away the legal rights of an individual, called the ward, and gives them to another individual, called the guardian.
There are two types of guardianships:
- Guardianship of the person: This is control over the incapacitated individual’s personal matters, including their:
- Housing;
- Medication;
- Medical issues;
- Guardianship of the estate: This is control over the incapacitated individual’s property and finances.
One individual may serve as a guardian of both the individual and of the estate. Incapacitation may be total or partial.
The designation will determine the extent of the guardianship. Guardianship provides for the individual’s care and management of the money while still preserving, to the largest extent possible, that individual’s independence as well as the right to make decisions that affect their life.
If an individual is appointed as a guardian, you are required to consult with a local Texas lawyer. An individual has the right to represent themselves in court, but they do not have the right to represent another individual.
Only licensed attorneys can represent the interests of a proposed ward. An attorney will apply for guardianship with the proper Texas county court.
The proposed ward must be evaluated by a doctor who will certify that they are incapacitated. In addition, the proposed ward has to be personally served with the application.
If there are any other interested persons, such as relatives, they must also be notified or served. An attorney ad litem will be appointed to represent the proposed ward’s interests.
The proposed ward, unless they are medically frail or cannot attend for another reason, and their attorney will appear in court for a hearing. At the hearing, there will be testimony regarding why a guardianship may be necessary.
Within 20 days of the appointment, an individual has to sign under oath that they will perform the duties of the legal guardian as well as post a bond with the court. Once the individual posts the bond, the clerk will issue Letters of Guardianship to prove the individual is, in fact, the guardian.
These letters will expire after 16 months. The individual has to file an annual report in addition to posting a new bond to obtain new letters.
The court may remove the individual as a guardian if they violate the oath, for example, by using the ward’s funds for their own personal benefit.
I Was Told I Have to Get a Guardianship. Is There Another Way?
A guardianship is usually a legal tool of last resort. If an individual or a government entity told a non-incapacitated individual to obtain a guardianship over their incapacitated spouse, they should ask why it is necessary.
An individual may know the reason the guardianship was suggested. If so, there may be another way they can legally act on behalf of another individual, such as by using a power of attorney. A power of attorney provides an individual with the legal right to act on behalf of another individual.
An individual who is mentally incapacitated cannot create a power of attorney because powers of attorney can only be created by an individual who knows and understands what they are signing.
If an individual’s spouse is mentally competent but they are physically incapacitated, they should be able to obtain a power of attorney.
My Spouse Has Become Mentally Incapacitated, and I Want to Sell Our Home
Texas is a community property state. In community property states, everything that a married couple obtains together during their marriage will be considered property of the marriage.
This means that the Texas property will belong to both of the spouses. If a married couple’s home is to be sold, both of the spouses have to agree and execute the deed. This is true even if the title to the property is only in the name of one of the spouses because the home is considered community property.
Separate property, or non-community property, is property that is owned prior to the marriage or was given to one of the spouses as an inheritance or as a gift. In the State of Texas, individuals who are mentally incapacitated cannot enter into contracts.
This means they will not be able to sign the documents that are necessary to sell the property. Texas devised a way of dealing with the issue of allowing a spouse to sell their community-property classified home without requiring one of the spouses to sign off on the transaction.
In order to conduct the transaction, the non-incapacitated spouse may:
- Become appointed as a guardian, as noted above;
- Get a power of attorney, although if the spouse’s incapacitation is mental, this will not be permitted; or
- File a petition with the court requesting an order that allows the non-incapacitated spouse to sell the house and property without permission from the incapacitated spouse.
There is no court order that can allow the non-incapacitated spouse to sell the separate property of the spouse who is incapacitated. If the spouse who is incapacitated has separate property, a guardian of the estate must be appointed in order to sell any of that property.
How Soon Can I File the Petition With the Court?
There are certain conditions that must be met in order to file for a petition asking for an order to allow a spouse to sell the house and property without the permission of the mentally incapacitated spouse, including:
- At least 60 days have passed after the incapacitated spouse was declared legally incapacitated,
- There must be a court hearing.
The court may require that the incapacitated spouse be represented by an attorney. There may also be restrictions placed on the non-incapacitated spouse. This may include a directive that outlines how the disbursement of the sale proceeds should occur. The timeline and conditions of these petitions are governed by the Texas Family Code.
There is an exception to this, such as if the disabled spouse, who was already declared incapacitated, obtains another court ruling declaring them incompetent. In these cases, the non-incapacitated spouse will have the automatic right to sell the property.
Under the Texas Probate Code, if one of the spouses is declared judicially incompetent by a court of law, the other spouse automatically becomes the community administrator for the community management of property. In certain situations, the court may remove the non-incapacitated spouse as administrator of the community property and appoint a third-party guardian.
The court may also order that the non-incapacitated spouse file an inventory or accounting.
Should I Consult an Attorney if I Want to Sell My Incapacitated Spouse’s Land?
If you have any issues, questions, or concerns regarding selling an incapacitated spouse’s land or home in Texas, it is important to consult with a Texas real estate attorney. These cases can be very complex and usually require legal assistance.
Your attorney can guide you through the guardianship process, ease some of the burden on you, and help you determine the best course of action that will benefit you and your incapacitated spouse. Your lawyer will also represent you during all court appearances and help to ensure that the proceedings and sale of your home go smoothly.
