Texas Guardianships Attorney
Guardianships may be sought in the case of a young person attaining the age of 18 years, an elderly person, or anyone, who because of medical or other reasons is unable to make decisions regarding important matters. These decisions my involve the ability to enter into contracts, to obtain a driver’s license, vote, make significant medical decisions or apply for admission to certain institutions that may provide care to the individual. It is necessary that someone be appointed to manage the affairs of that person. The guardian may be a close family member or an institution which obtains letters of guardianship to help manage the affairs of its residents. Guardianship proceedings may be agreed or contested.
Guardian of the Person versus Guardian of the Estate
Sometimes the guardian is one person responsible for both the ward as a person and the ward’s estate. Sometimes one person is appointed Guardian of the Person and another is appointed Guardian of the Estate.
Guardian of the Person
A guardian of the person handles matters related to the care of the ward (individual subject to the guardianship). Examples could include admitting the ward to a hospital, obtaining medical care for the ward, helping determine the residence of the ward, providing daily care for the ward, etc. This person may be a person closely related to the ward, or an institution responsible for caring for the ward which has obtained letters of guardianship. For various reasons the two aspects of guardianship may be better performed by two individuals or institutions.
Guardian of the Estate
A guardian of the estate acts in the best interest of the ward regarding the ward’s property, assets, real estate, bonds and mutual funds, and other matters concerning the ward’s finances and investments. You may choose a person to act as a guardian of the person and another to act as guardian of the estate. There may be a situation in which you have a person whom you feel would be desirable as guardian of the person, but you know another person whom you feel very comfortable in handling the ward’s estate.
Guardianship of a Minor
Parents are the natural guardians of their children's "person". As I discussed earlier, a guardian of the person handles matters related to care of the child. Examples are matters such as admitting the child to a hospital, obtaining medical care, determining residence etc.
However, if a child inherits a large sum of money or valuable property, the court will rule that the minor is not capable of managing money or property on his/her own behalf. Individuals younger than 18 years are legally incapacitated regarding their estate. Thus a guardianship proceeding must be initiated so a court can oversee the management of the child's estate. But Texas law does not guarantee that a parent will be appointed the guardian of their child's estate. In most cases a parent or both parents will be appointed guardians of their child/children's estate, but there are also certain situations that can disqualify a parent from serving as guardian of their child's estate. The appointment of parent/parents is not automatic.
If both parents die, a court will determine the guardian of the child's person and estate. The Probate Code gives some guidance as to who can be appointed a child's guardian, but there is not automatic/default person or persons who will be appointed. A Designation of Guardian for a Minor can accomplish the parents' goal of having a person appointed of their choosing. A competent probate attorney can assist in the drafting of this and related documents.
Guardianship of Incapacitated Adults
With the progress of science and healthcare comes the reality that people are living longer. But many are falling victim to diseases such as Alzheimer’s, Parkinson’s, Huntington’s and other neurodegenerative diseases. A growing number of adults in Texas are becoming incapacitated prior to their deaths, and the need to appoint guardians for our parents and aging friends will continue to increase over the coming years.
Many of us are also faced with the need to take care of a child suffering from autism, mental retardation, down syndrome or other developmental disabilities, who is soon to become an adult. Once an adult, the parents no longer have the ability to contract, admit the child to a health facility, or collect nominal government benefits without first being appointed guardian over the child’s person. Typically young adults in this situation don’t require a guardian of their estate, but if he/she receives government benefits, possesses, inherits or somehow obtains substantial assets, then a guardianship of the person’s estate will need to be obtained.
What would happen if you were to become disabled due to accident or disease and the authority to conduct your affairs, manage your estate, operate your business or perform other duties, needed to be given to another individual or entity.
A Designation of Guardian would not avoid a costly, stressful and time-consuming guardianship proceeding. That can be accomplished by executing a trust.
Like guardianships for minors, guardianships for adults are complex. When you find that you need the assistance of an experienced probate and guardianship attorney, I can help you.