Guardianship is a legal process designed to protect vulnerable persons from abuse, neglect (including self-neglect), and exploitation. Guardianship provides for the person’s physical care and management of his or her money while preserving, to the largest extent possible, that person’s independence and right to make decisions affecting his or her life. The person who is the subject of a Guardianship is called the “ward”. Guardianship removes certain rights and privileges from the “ward”.
Guardianships are created for a variety of different reasons. Guardianship most often applies in cases involving: an elderly person who no longer has the capacity to care for themselves or manage their financial affairs, a minor who has received a substantial inheritance or gift in his or her own name, or a disabled minor who has attained the age of majority, but who cannot assume adult responsibilities with respect to his or her own affairs. No matter the circumstances necessitating a Guardianship, the decision to seek Guardianship is often painful and difficult for the alleged incapacitated person and his or her family members.
A Guardianship can be either temporary or permanent. A court may appoint a temporary guardian if presented with “substantial evidence” that an adult incapacitated person or minor requires the immediate appointment of a guardian. This type of guardianship is valid for a limited time. The majority of guardianships are “permanent”. Permanent guardianships can be either total or partial. The standard of evidence required to make a finding for a permanent guardian is clear and convincing.
There are two types of Guardianship: Guardian of the Person and Guardian of the Estate. A Guardian of the Person is appointed by the court to take care of the physical well-being of a ward and a Guardian of Estate is appointed to care for a ward’s property. Often both a guardian of person and a guardian of estate are appointed and this can be the same person.
Guardian of the Estate – A guardian who possesses any or all powers and rights with regard to the property of the ward. Duties include the following:
- Collect debts, rental, and claims due the ward
- Enforce obligations in favor of the ward
- Bring and defend lawsuits by or against the ward
- Manage the estate of the ward as a prudent person would manage his/her own affairs
Guardian of the Person – A person who is responsible for and who advocates for the health, well-being and personal needs of the ward. Duties include the following:
- Right to establish the wards domicile
- Provide care, supervision and protection
- Provide clothing, food, medical care, and shelter
- Consent to medical, psychiatric, and surgical treatment, but not in-patient psychiatric commitment
The law dictates and prioritizes persons who are eligible to become guardians. The ward’s spouse is entitled to be the guardian before any other individual. If there is no spouse or if the spouse declines or is unable to serve, then the next of kin is the next eligible individual to serve as guardian.
When determining who to appoint as guardian, the court will consider the incapacitated person’s best interest. The court will give consideration to the ward’s preference and may appoint this person if he or she is not disqualified. It is important to note at this point, Texas residents may designate a guardian prior to incapacity.
A guardianship has severe consequences for the ward. They are stripped of the right to do many things for themselves. Due to this fact, courts will look for less restrictive alternatives such as money management programs, powers of attorney, medical directives, and management of community property by a competent spouse.
Sound estate planning will often avoid the need for a guardian in the case of elderly persons. Designating someone to manage your financial affairs in a Durable Power of attorney or designating someone to make your medical decisions for you in a Medical Power of Attorney will usually take care of the needs that an application for an appointment of a guardian typically addresses. For minors, a will or trust instrument can designate a particular person to serve as a guardian in case the testator dies or becomes incapacitated before the minor becomes an adult.
Expenses of Guardianship
Expenses associated with creating a guardianship include:
- filing and service of process fees charged by the County Clerk
- fees charged by the applicant’s attorney
- the attorney ad litem’s fees
- medical examination costs, and
- bond premiums.
These expenses may be paid out of the ward’s estate if the judge creates a guardianship.
In cases of a contested guardianship where no guardianship is created because the court finds the proposed ward has full capacity, the applicant may not be reimbursed by the proposed ward’s estate for funds spent on costs and attorneys fees.
In cases where the proposed ward is indigent, some or most of the court expenses may be paid out of the funds of the county in which the alleged incapacitated person resides. The filing fees may vary from county to county, but in almost every case there will be charges associated with creating a guardianship.
Guardianship law is designed to protect the rights and interests of the ward, and it does so by establishing procedures intended to assure guardian compliance with the rules. These procedures necessitate a lot of lawyer involvement. Establishing a guardianship can be expensive, and the costs of administering a guardianship of the estate can easily exceed the annual income of the estate. For this reason, it is usually a good idea to see if there are any alternatives to a guardianship before starting down the guardianship path.
For more information, please contact our office for assistance.