Most people know that a parent is the “legal guardian” of their minor children. But adults may require a legal guardian if they become incapacitated. Guardianship law is the process of someone, called the “applicant” being appointed the legal guardian over the incapacitated person or “ward.”
A guardianship is required when someone is declared incapacitated, meaning that because of a mental or physical condition they are substantially unable to (a) provide for their own food, clothing, and shelter, (b) care for their own physical health, or (c) manage their own financial affairs.
Guardianships are court proceedings, meaning the applicant must petition the court to be designated as guardian over the ward. Guardianships are highly complex legal matters because, if the applicant is successful, the court will sign an order that effectively terminates some or all of the ward’s rights to make their own decisions and places those powers in the applicant’s hands. The courts do not take guardianships lightly and will only grant the application if the judge decides it is in the ward’s best interest. The court will appoint an attorney (called an “attorney ad litem”) to represent the ward’s best interest in the proceedings. Many courts will often send their own investigators to interview the ward and make sure the applicant is a proper person to be a guardian.
Generally, there are four types of guardianships under Texas law:
(1) Guardianship of the Person – The guardian is responsible for ward’s physical, emotional, and educational needs. The guardian is obligated to provide the ward care, supervision, protection. The guardian must also provide the ward food, clothing, shelter, and medical care.
(2) Guardianship of the Estate – The guardian is responsible for managing the ward’s property and financial affairs. This includes the ward’s real estate, bank accounts, investments, vehicles, and anything else the ward owns. A guardian of the estate, however, may not make medical care decisions over the ward.
(3) Guardianship of both the Person and the Estate – Also known as a “full guardianship”, the guardian of the person and the estate has all the powers and responsibilities to take care of the ward’s physical and financial needs.
(4) Temporary Guardianship – A temporary guardianship occurs when, because of an emergency situation, a short-term guardian is needed before the court appoints a permanent guardian.
A guardianship is not the right answer for every family. There are numerous alternatives to guardianships plus an array of community supports and services available to the disabled. In many cases guardianships can be avoided entirely by designating a responsible family as your power of attorney with authority to make financial and healthcare decisions. However, if a guardianship is required, you need an experienced to guide you through the process. The experienced attorneys at The Michels Law Firm commonly handle guardianship matters including
- Guardianships of the Person and the Estate of Elderly
- Guardianships of Adult Disabled Children
- Modifying or Terminating Guardianships