Does Your Loved-one Need a Guardian?
Looney, Smith & Conrad, P.C. Family Law Firm
Experienced Guardianship Attorneys
What is Guardianship?
Guardianship can be granted to an individual or entity capable of performing all custodial duties pertinent to the type of guardianship assigned by the courts. An individual can be a guardian for an incapacitated adult or a minor child, as defined by Chapter 13 of the Texas Estate Code, or the estate of such individuals.
Section 1001.001(b) of the Estates Code has been amended to read: In creating a guardianship that gives a guardian limited authority over an incapacitated person, the court shall design the guardianship to encourage the development or maintenance of maximum self reliance and independence in the incapacitated person, including by presuming the incapacitated person retains capacity to make personal decisions regarding the person’s residence.
Guardianship of an Incapacitated Adult
The Estate Code defines an incapacitated person as: “An adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter to himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.”
Under Texas law, an incapacitated person cannot legally enter into a contract. Therefore, an incapacitated person is legally unable to buy or sell a home, car, stocks and bonds, or any other type of property.
Before appointing a guardian for a proposed ward, the court must find the proposed ward is an incapacitated person, it is in the proposed ward’s best interest to have the court appoint a person as the proposed ward’s guardian, the proposed ward’s rights or property will be protected by the appointment of a guardian, alternatives to guardianship that would avoid the need for the appointment of a guardian have been considered and determined not feasible and supports and services available to the proposed ward that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible.
Purpose of Adult Guardianships
A guardianship must be established for a person who becomes incapacitated and does not have an estate plan. There are two types of guardianships:
- Guardianship of the person (minor child or incapacitated person)
- Guardianship of the estate
The guardian can be a different person or entity for each type. A person receiving guardianship services is known as the “ward.”
A guardian is a court-appointed person or entity (such as a state agency) that makes decisions on behalf of an incapacitated person. Chapter 13 of the Texas Probate Code defines the purpose, laws, and responsibilities of a guardian. Depending on the powers granted by the court, guardianship responsibilities include, but are not limited to:
- Providing care, supervision, and protection for the wards
- Arranging for services, including medical, mental health, and/or services to persons with intellectual disabilities, for wards that qualify for such services
- Arranging for placement in facilities, such as long-term care facilities, hospitals, or foster homes
- Managing estates
- Making medical decisions
- Having the power to sign documents necessary or appropriate to facilitate employment of the ward
For a person judicially declared to be incapacitated, the person’s non-incapacitated spouse is:
- Legally authorized to manage and dispose of the incapacitated person’s interest in community property without court-supervised administration, and
- Is first in line of eligible persons to be appointed guardian of the estate for the incapacitated person’s separate property.
For assistance with #LegalGuardianship, contact Looney, Smith & Conrad, P.C. at 281-597-8818 or 979-826-8484. Text us: 405-388-6191.
Our experienced guardianship attorneys are available 24 hours a day, 7 days a week for a free, no-obligation case evaluation.
A guardian of the estate must be appointed for an incapacitated person who is not married. Many organizations, such as a title insurance company, may require a guardian of the estate to be appointed for an incapacitated person before they transact business with the property of the incapacitated person, even when there is a non-incapacitated spouse. This is because organizations want to make sure that they are dealing with a properly authorized person who is the proper representative for the estate.
When estate planning tools are not in place, the guardian of a person’s estate is usually required to legally buy and sell property for the incapacitated person. A court must appoint the guardian and approve any purchase or sale by the guardian of property owned by the incapacitated person.
The guardian of the estate must file and the court must approve an annual accounting of all income and expenses of the incapacitated person’s estate. Lack of estate planning for incapacity can have a very negative effect on the incapacitated person and his or her family.
Guardianship of a Minor Child in Texas
A minor is someone under the age of 18, who is not married and has not had his or her minor state or disability removed by the court.
If the ward is a minor, the court will grant guardianship in the following order:
- Person the last surviving parent designates for guardianship
- Nearest ascendant to the child after the parents (usually grandparents or aunts and uncles)
- Other relatives
- Non-relatives the court determines will satisfy as an appropriate guardian
The Texas Guardianship Process
Texas is strict when determining guardianships. The state will usually recommend the person hire a family law attorney to help with the Texas guardianship process because of the complications.
Types of Guardianship
There are many types of guardianship including:
- Emergency Guardianship
- Limited Guardianship
- Medical Guardianship
- Parental Guardianship
- Permanent Guardianship
- Temporary Guardianship
Difference Between a Power of Attorney and Guardianship
A power of attorney is less restrictive than a guardianship. A durable power of attorney is a legal document where one person (principal) gives another person (agent) the legal power to make decisions in addition to him or herself. A Power of Attorney can be revoked at any time by the principal. A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. Additionally, the POA does not need approval from a competent court. A guardianship loses his or her authority to make many legal decisions. A power of attorney does not lose his or her ability to make legal decisions.
The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent or attorney or, in some jurisdictions, the attorney-in-fact. Formerly, a power referred to an instrument under seal while a letter was an instrument under hand, but today both are signed by the donor, and therefore there is no difference between the two.
Alternatives to Guardianship
Section 1002.0015 of Estates Code
1. Execution of a medical power of attorney;
2. Appointment of an attorney in fact or agent under durable power of attorney;
3. Execution of a declaration for mental health treatment;
4. Appointment of a representative payee to manage public benefits;
5. Establishment of a joint bank account;
6. Creation of a management trust;
7. Designation of a guardian before the need arises; and
8. Establishment of alternate forms of decision-making based on person centered planning.
For assistance with guardianship, contact our Houston Guardianship Attorneys at Looney, Smith & Conrad, P.C. at 281-597-8818.
Our Guardianship Attorneys are available 24 hours a day, 7 days a week. Call our Hempstead Guardianship Attorneys at 979-826-8484.
Text Us: 405-388-6191