Guardianship

Guardianship is a legal relationship imposed by the court that appoints a "guardian" to care for someone who is incapacitated, and unable to care for themselves.

An incapacitated person is defined as:

• An incapacitated adult who due to mental or physical conditions is unable to care for themselves such as an inability to manage their physical health, or financial affairs. Common examples of incapacitated adults include elderly people with age-related diseases such as dementia, or a child with a disability who has turned 18.

• An individual who needs a guardian to receive funds due from any government source.

• Minor children, where a non-parent is granted parental rights.

Guardian and ward are the legal terms used for the relationship between someone who protects another (the guardian) and the person being protected (the ward).

There are also different types of guardianships in Texas:

• Guardian of the estate is responsible for managing the property and financial affairs of the ward. This can be full management, or limited to financial ares of concern for the court.

• Guardian of the person is responsible for providing supervision, care, medical treatment, food, clothing, and shelter for their ward. They may also be required to make medical decisions on their behalf. This can also be full, meaning all decisions for a person, or more limtied to only some decisions for the guardian.

• Guardian of the person and estate: Someone responsible for managing both a person's care and financial affairs.

• Temporary/emergency guardianship: A temporary guardianship could be awarded until the court makes a decision, about who would be the best fit to be the long-term guardian.

Only one person can be appointed as the guardian of the estate or person unless it is the parents of a child, but if it is in the best interests of the ward then one person could be the guardian of the estate, and the other of the person.

There are alternatives to guardianship that may suit the needs of your loved on. Courts require that all alternatives are considered before imposing a guardianship.

One example is setting someone up as a representative payee, to receive Social Security Disability or Supplemental Security Income for a person who is not capable of managing their own finances.

Another common example is signing powers of attorney to a trusted person. That could include a medical power of attorney to make health care decisions or financial power of attorney to handle financial matters. Someone may assign powers of attorney in their will preemptively so that if they do become unable to make their own decisions, someone can easily step in without going through a complex guardianship process.

An estate plan created by an attorney can also include trusts which administer an estate, this can save time and money for family members when someone becomes incapacitated or in the event of their death.

Trusts can also serve to protect your vulnerable family members. If for example, you have a disabled child, you can create a special needs trust which will financially support them after your death, without affecting their government benefits.

The application submits an Appointment of Permanent Guardian to the court, usually in the county where the proposed ward lives. The applicate must provide documentation including a doctor's examination regarding the ward's mental or physical ability that has been performed in the last four months, or 24 months if the ward's incapacity results from intellectual disability.

The application will be filed with the court. The court will then appoint an attorney ad litem who will meet with the involved parties and determine what the ward wants. A court hearing will be held, and that hearing’s length is determined by if anyone is contesting any piece of the application. Sometimes, a guardian ad litem will be appointed to tell the court what is in the best interest of the proposed ward.

If there is strong evidence that the proposed ward is an incapacitated person, that the guardianship is in their best interests, and that their rights will be protected, then they will grant the guardianship.