Guardianships Q & As

Legal Effect of Guardianship

Guardianship is the option of last resort when there is no available legal alternative to protect the personal or financial well-being of an incapacitated person. If you are caring for a family member and need guidance in obtaining the necessary legal authority to act on their behalf, we invite you to call us to arrange a consultation. We are often asked to advise caregivers about the legal effect of guardianship in cases such as the following:

• An elderly person with Alzheimer’s Disease or other form of dementia
• An adult with a mental or physical disability
• A minor child (under the age of 18) who inherits money or property
• A person who is due government funds such as veteran’s benefits

Hubbard and Rotthier, Attorneys at Law can help you determine if a guardianship is necessary, and if so, guide you through the complex process of establishing a guardianship for a family member or friend.

Guardian of the Person/Guardian of the Estate

A guardianship is a court-supervised administration for a minor or an incapacitated adult. The person who is subject to the guardianship is called the “ward” and the person appointed by the court to act on the ward’s behalf is referred to as the “guardian”.

There are two types of guardianships:

• Guardian of the Person who is the guardian appointed by the court to take care of the ward’s physical well-being; and
• Guardian of the Estate who is the guardian appointed by the court to manage the ward’s financial affairs.

In some cases, only one type of guardianship is required for a ward, but in most cases both types of guardianships are required. The guardian of the person and guardian of the estate is usually the same person, but may be different people depending on the circumstances.

Serve as a Guardian?

Texas law establishes a priority list for who may serve as guardian for a minor or incapacitated adult. The court may skip over someone higher in priority if the court deems that person to be ineligible. The court may decide a person is ineligible to serve as guardian if the person is a minor; the person’s conduct has been notoriously bad; the person is incapacitated; the person has certain conflicts of interest with those of the ward; the person, due to lack of experience, education or other good reason, is incapable of managing the ward or the ward’s estate; the person is found unsuitable by the court; or the person is not a resident of the State of Texas and has not designated an agent for service of process in Texas.  Texas law also requires the Court to examine all alternatives to guardianship in an attempt to insure that a ward’s life is affected in the least invasive manner available.

Frequently Asked Questions:

Q1:  What is a Guardian?

A:  A guardian is a person, institution, or agency appointed by a court to manage the affairs of another individual. The guardian may be given the authority to manage personal and/or financial matters. Each state has specific laws, which govern guardianship proceedings and the guardian’s activities. States also have separate laws and procedures for guardianships for minors and for adults with disabilities.

Q2:  Who may have a guardian appointed to manage his/her affairs?

A:  The state laws presume that an adult 18 years of age or older is capable of managing his/her own affairs. In order to have a guardian appointed a court must find that the individual has demonstrated a lack of capacity to make or communicate responsible decisions concerning personal or financial matters. The laws of the state in which the individual resides must be reviewed to learn the specifics governing the definition of an incapacitated person.

Q3:  How is it determined that a person may need a guardian?

A:  The fact that someone has some sort of diagnosis, or disability does not equate to the need for a guardian. The primary test for determining the need for guardianship focuses on the ability to make decisions, and to communicate the decisions once made. Most guardianships focus on the ability to make decisions regarding living arrangements, medical care, vocational and educational services, ancillary professional services, care for dependents, and managing finances. The essence of decisional capacity may be encompassed in the following questions:

1. Does the individual understand that a decision needs to be made?

2. Does the individual understand the options available in making a decision?

3. Does the individual understand the potential consequences of the decision and options?

4. Can the individual direct the decision to appropriate parties?

Q4:  Who can act as a guardian?

A:  The following qualifications for guardians are fairly universal: 

• Individuals over the age of 18, who have not been convicted of a felony, and have not adjudicated disabled 
• Non-related professional guardians 
• A public or private institution, as long as they do not provide services to the individual. 
• Financial institutions (for estate matters only.)

In some states there is a statutory preference for family member as guardian, but in all states the selection of the guardian is in the court’s discretion. While most states do not have education or experience requirements to be appointed as guardians, some states provide some assistance such as videos, guardian manuals, or training sessions. For specifics about who may be a guardian review the individual state guardianship statutes

Q5:  What are the usual steps to appointing a guardian?

A:  Most states require a preliminary investigation in to the need for a guardianship. While the requirements of the investigative report vary greatly, at a minimum the report should (1) provide a description of the nature and type of disability and an explanation of how that disability impacts the individual’s decision making; (2) offer an analysis and results of evaluations of the individual’s mental and physical condition, educational level, adaptive behavior and social skills as appropriate; (3) state an opinion about the need for guardianship, and provide supporting reasons for this opinion; and (4) recommend suitable living arrangements and treatment or habitation plans and again the supporting reasons for the recommendations. The report should accurately reflect the skills and abilities of the person as well as the deficits and problems. The report must be timely and meet a time frame that is usually stated in the statue.

Seek Experienced Legal Counsel

Guardianship proceedings are complicated, requiring the expertise of a skilled probate and elder law attorney. For wise and compassionate counsel, call our office to schedule a consultation.

 

 
Contact Hubbard and Rotthier, Attorneys at Law for a confidential consultation to assist you with your legal needs. Licensed to practice in all courts in the State of Texas.