Description Tag: The decision to seek a guardianship should not be taken lightly. Read on to find out about the different kinds of adult guardianship arrangements that are available under Texas law.
Adult guardianship is an arrangement that is established by a court between two people (typically) — a guardian and a ward. The ward is an adult who needs help managing his or her personal or financial affairs. A court-appointed guardianship is typically established because the ward is mentally incompetent or unable to communicate, and thereby incapable of managing his or her own affairs without assistance.
Guardianship is a responsibility that needs to be taken very serious by the appointed guardian. Moreover, the powers and duties of a guardian depend largely on which of the four types of guardianships has been established under Texas guardianship law . Following is a description of each type.
Guardian of the Person (full or limited)
A guardian of the person makes personal decisions on behalf of the ward, including:
- The right to determine where the ward will live
- The right to put the ward into a nursing home
- The right to consent to medical treatment on behalf of the ward (including the right to consent to an abortion, and in certain circumstances the use of psychoactive medication)
- The right to allow or forbid a ward’s travel plans
- The right to file for divorce, or refrain from doing so
- Similar non-financial rights
A full guardian of the person exercises all of these rights in much the same way as a parent might exercise authority over a child, subject to certain legal limitations (a guardian cannot unilaterally place a ward in a mental health facility, for example, or force the ward to take psychotropic medication). A guardian must act in the best interests of the ward at all times.
A limited guardian of the person exercises more limited authority than a full guardian of the person. These limitations are imposed by the court that established the guardianship in the first place. A court may, for example, allow the ward to:
- Decide whether to get married
Guardian of the Estate (full or limited)
A guardian of the estate manages the financial affairs of the ward. Guardians of the estate are supervised carefully due to the high potential for abuse arising out of this sort of arrangement. A guardian of the estate may be vested with the authority to:
- Pay the ward’s bills
- Decide which bills to pay and which bills not to pay, if the guardian’s resources are insufficient to pay all of them
- Invest the ward’s money
- The right to sign contracts on behalf of the ward
- The right to apply for government benefits such as Medicaid
- The right to file a lawsuit on behalf of the ward
- Buy or sell property on behalf of the ward (even, in some cases, in a manner inconsistent with the ward’s last will and testament)
Certain financial decisions may require the court’s approval. A guardian is not responsible for a ward’s debts but might be found liable for mismanaging them.
A limited guardianship of the estate works a lot like a limited guardianship of the person — the court may allow the ward to make certain decisions on his own, such as whether to sell his home, while the guardian retains the authority to make other financial decisions on behalf of the ward.
Guardian of the Person and the Estate
A guardian of the person and estate exercises the authority of both a guardian of the person and a guardian of the estate, and his authority to make decisions on behalf of the ward may be limited by a court in the same manner as either of the above-described types of limited guardianships.
It takes a while to establish a permanent guardianship of the person or the estate. Meanwhile, an emergency may arise that requires the immediate establishment of a guardianship. This is accomplished by appointing a temporary guardian. A temporary guardianship typically endures for only 60 days after it is established, during which time a permanent guardianship may be sought.
The following facts must be proven in order for a temporary guardianship to be established:
- There is a strong likelihood that the proposed ward is incapacitated
- There is immediate danger to the proposed ward or his assets
- There are good reasons to believe that the immediate appointment of a guardian is required to protect the proposed ward or his assets.
The main advantages of a temporary guardianship are that (i) it can be established quickly and (ii) it is easier to prove the need for a temporary guardian than to prove the need for a permanent guardian.
Alternatives to Guardianship
A guardianship can be burdensome on the guardian and, depending on the circumstances, unnecessarily restrictive from the point of view of the ward. It also involves a considerable amount of red tape. Some common alternatives include:
- A supported decision-making agreement with family or friends
- A durable power of attorney
- A medical power of attorney (for medical decisions)
- An advance directive (also referred to as a living will)
- A joint bank account
- A special needs trust
Other alternatives exist as well.
Who Cannot Serve as a Guardian?
Certain people cannot serve as guardian under Texas law. These people include:
- a minor (under 18)
- Someone who is incapacitated themselves
- Someone who is indebted to the ward
- Someone who is involved in a property dispute with the ward
- Someone who is involved in a contract dispute with the ward
- People convicted of certain types of crimes, such as sexual offenses
- Someone who the court finds otherwise unsuitable (due to a conflict of interest, for example)
Texas courts are endowed with considerable discretion in accepting or rejecting guardianship applications. Nevertheless, the court will give weight to the proposed ward’s preference if it was expressed before they became incompetent.
Act Quickly, Act Decisively
Romano and Sumner’s offices are located in Sugar Land, Texas on Sweetwater Boulevard. Naturally, our clients come from all over Sugar Land — Venetian Estates, Riverstone, Sugar Lakes, Avalon and elsewhere in town. We also serve Houston and the surrounding areas.
If you are considering establishing a guardianship, terminating one or replacing a guardian, contact the guardianship attorneys at Romano & Sumner immediately to schedule a free initial consultation where we can discuss your options and answer your questions. We can be reached online, by phone at (281) 242-0995, or by email at [email protected].