Guardianship is a legal relationship established by a court of law, which allows one person, known as the guardian, to make decisions for someone else, called the ward. A guardian is appointed to a ward when they are unable to take care of themselves due to age, sickness, or some other disability. In Texas, courts have the authority to appoint a guardian with either full or limited control over the affairs of their ward. This article will discuss the various types of adult guardianships in Texas and provide essential information for those considering guardianship for a loved one or themselves.
Understanding Guardianship in Texas
Before diving into the different types of adult guardianships in Texas, it’s essential to understand the concept of guardianship and the legal responsibilities of a guardian.
A guardian has specific legal responsibilities that they must carry out or risk being removed from their position by the court. These may include posting a bond as an insurance policy against a guardian putting a financial burden on the estate of their ward, managing said estate in the ward’s best interest, providing for a ward’s basic needs, filing an annual account that lays out the finances of the estate, and filing an inventory of their ward’s assets. It must be noted that having a guardian takes away some agency and rights of the ward, so it should only be done when it is truly in the ward’s best interest and with a trustworthy and responsible guardian.
Incapacitated Persons and the Need for Guardianship
In Texas, a person is considered incapacitated if they are:
- A minor
- An adult individual who, due to a physical or mental condition, is substantially unable to provide for themselves, care for their physical health, or manage their financial affairs
- An individual who must have a guardian appointed to receive funds due to them from any governmental source
The person the guardian is caring for is known as a “ward”.
Different Types of Adult Guardianships in Texas
There are four primary types of adult guardianships in Texas. These are guardianship of a person, guardianship of an estate, guardianship of the person and estate, and temporary or emergency guardianship. In all these cases, guardianship may either be limited, where a guardian has control over certain aspects of a ward but not others or full, where a guardian has complete control over the ward’s affairs.
Guardianship of the Person
A guardian of the person is responsible for providing care, supervision, food, shelter, clothing, and medical treatment to their ward. This type of guardianship is often appointed when a ward is unable to make personal decisions, such as healthcare and living arrangements, due to their incapacitated state.
Guardianship of the Estate
Guardianship of the estate refers to the guardian’s responsibility for managing the property and finances of their ward. This type of guardianship is necessary when a ward is incapable of managing their financial affairs due to incapacity.
Guardianship of the Person and Estate
In some cases, a guardian may be appointed to manage both the personal care and financial affairs of their ward. This type of guardianship is known as guardianship of the person and estate and is typically appointed when a ward requires comprehensive assistance in managing their life and assets.
Temporary or Emergency Guardianship
Temporary or emergency guardianship is most often used with minor guardianship, but it can also apply to adults. A court may appoint an emergency guardian for an adult if there is substantial evidence that a person may be incapacitated or is an imminent danger to themselves or their estate. This type of guardianship is generally short-term and expires after a specific period or when the court determines that a permanent guardianship is necessary.
Determining the Need for Guardianship
Guardianship should only be considered if there are no other viable options available. For adults to be appointed a guardian, they must have a disability or be at least 65 and be suffering abuse, neglect, or exploitation. Neglect, in this case, can either refer to when someone who is meant to be taking care of an elderly or disabled adult is not correctly doing their job, or self-neglect when someone is unable to tend to their own needs properly.
In less severe cases, alternatives such as power of attorney, money management, or a trust may be preferable to guardianship. However, if a person is incapacitated, whether temporarily (such as through injury) or permanently, guardianship can be the best way to protect them and their estate.
Alternatives to Guardianship
Guardianship is a significant step and should only be considered when no other options are available. Texas law provides several alternatives to guardianship, including:
- Execution of a medical power of attorney
- Appointment of an attorney in fact or agent under a durable power of attorney
- Execution of a declaration for mental health treatment
- Appointment of a representative payee to manage public benefits
- Establishment of a joint bank account
- Creation of a management trust
- Creation of a special needs trust
- Designation of a guardian before the need arises
- Establishment of alternate forms of decision-making based on person-centered planning
The Process of Appointing a Guardian in Texas
The process of appointing a guardian in Texas requires several steps, including:
- Retaining an attorney to represent you throughout the process
- Determining the type of guardianship you would like to seek and requesting that the court appoint you
- Providing medical documentation that indicates the person you wish to have guardianship over lacks the capacity to manage their own affairs
- The court will make the final decision on if guardianship is required and whether it ought to be full or limited
Court Involvement in Guardianship Cases
When a guardianship case is brought to court, the judge will consider several factors before making a decision. These factors may include:
- The proposed ward’s incapacity or disability
- The proposed ward’s best interests
- The necessity of a guardian to protect the proposed ward’s rights and property
- The eligibility and qualifications of the person seeking guardianship
Additionally, the proposed ward has the right to be present at the hearing and request a jury trial if they desire. The court must be provided with clear and convincing evidence that the proposed ward is incapacitated, that appointing a guardian is in their best interest, and that their rights or property will be protected by the appointment of a guardian.
Responsibilities of a Guardian
Once appointed, a guardian in Texas must meet all legal responsibilities established by the court. These responsibilities can include:
- Posting a bond in an amount set by the court and taking an oath to assure that they will fulfill their duties and responsibilities
- Managing estate assets in their ward’s best interests
- Providing for their ward’s needs (clothing, food, shelter, education, medical care, etc.)
- Filing an annual account detailing the estate’s receipts and disbursements during the year
- Filing an inventory of the ward’s assets
- Asking the court’s permission and approval for some actions taken on behalf of the ward
Designating a Guardian in Advance
In Texas, an individual may pre-designate a guardian of the estate and a guardian of the person in the event that they become incapacitated. This is done by completing and filing a Designation of Guardian in Advance of Need document. They can also designate a guardian for their children as well. If designation is not made in advance, the court will appoint a guardian using its own methods.
Guardianship is a complex legal matter that should only be considered when absolutely necessary. If you or a loved one is considering guardianship in Texas, it’s crucial to understand the different types of adult guardianships, the responsibilities of a guardian, and the alternatives to guardianship. By working with an experienced attorney and carefully evaluating your situation, you can make the best decision for yourself or your loved one.