GUARDIANSHIP IN TEXAS
In Texas, guardianship is a process where a court appoints a person or an organization to care for the physical and/or financial needs of a minor child or incapacitated adult. This is generally an onerous process because the rights of the person who needs a guardian (Ward) are being removed and given to another person or organization.
There are two types of guardianships: guardian of the person and guardian of the estate. A guardian of the person makes decisions for the Ward’s well-being and daily care. A guardian of the estate cares for the Ward’s property and financial well-being. Not every Proposed Ward requires both types of guardians, and those who do require both may have the same person or different people named in each capacity.
There are a few circumstances where guardianships are more common:
- Minor child who does not have parents with legal rights or the ability to make decisions on the child’s behalf.
- Disabled adult, especially those just turning 18 years old. Parents of a disabled minor should consult with an experienced guardianship attorney before the child reaches the age of 18 years. At 18 years, the child is legally considered an adult, and he is presumed, by law, to be able to make his own decisions. To protect that disabled adult, the parents or caregivers should have a plan in place to continue caring for the child’s well-being and financial security into his adulthood.
- Elderly (without a comprehensive estate plan). Those who lose capacity through Alzheimer’s, dementia, and other diseases and disorders that cause the adult who was once able to care for herself to continue to do so.
Anyone who knows the person with the incapacity can bring the case to court. It will generally take an Ad Litem attorney and at least one doctor (unless it is the case of a minor child) to determine whether the proposed ward is actually incapable of caring for his or her well-being and/or finances. As stated, this is a relatively high burden, due to the high stakes involved in removing any rights of the proposed ward.
Most people can avoid the need for a guardianship by having a proper estate plan in place. An estate plan will allow you to choose people to make certain decisions for you if you should become incapacitated. A comprehensive estate plan may also include a designation of a guardian to care for you if you become incapacitated.
If you are interested in consulting with a local, experienced attorney regarding the appropriate estate plan for your needs, please contact our office. If you know of someone who is incapacitated and in need of a guardian, please contact our office for a consultation.