GUARDIANSHIP

What is guardianship? The primary scenarios where a guardian is needed include the following: (1) a person has become incapacitated or incompetent and unable to care for themselves personally or financially, and (2) a person is a minor (and thus legally incapacitated) and is in need of a guardian due to the death or incarceration of a parent. The person in need of a guardian is referred to as the “ward”.

Before applying for guardianship, Texas courts prefer that applicants explore less restrictive alternatives to guardianship. There are many alternatives to guardianship that can be discussed with a knowledgeable attorney.

If, after careful consideration, guardianship is the only appropriate alternative, then a few matters need to be considered. With respect to an individual in need of a guardian who is under the age of 18, it is a clear case because the individual is legally incapacitated. If, however, the person needing a guardian is an adult, medical determination will be needed to establish that the individual is, in fact, incapacitated and in need of a guardian. Additionally, a determination will need to be made as to what powers and authority the Guardian will have over the ward. Sometimes, a ward may be capable of handling some aspects of their personal life but not others. Every individual ward is different, and every guardianship will be tailored by the court to best meet the needs of the ward.

There are two types of guardianship: guardian of the person and guardian of the estate. The guardian of the person makes decisions for the Ward concerning medical treatments, housing, and personal matters. The guardian of the person is required to report to the court annually on the condition of the ward. The guardian of the estate manages the ward’s financial estate, and is required to prepare annual accountings reporting to the court how the ward’s assets had been managed each year.

Guardianship is a serious undertaking that requires detailed legal representation and attention to deadlines and the requirements under the Texas Estates Code.

Steps to Becoming a Guardian

The Texas Estates Code requires very specific procedures to become a guardian. These procedures include hiring a lawyer, filing an application with the court, and then attending a hearing where a judge will determine if guardianship is necessary.

Once appointed and approved as a guardian, there are also specific procedures that must be followed. This means that the guardian must prepare and file reports in a timely manner. These processes are legal requirements, necessitating an experienced attorney to properly initiate the court proceedings. In addition, an attorney can also guide the proposed guardian through the complex process both before and after the appointment as a guardian.

Responsibilities of a Guardian

While being a guardian can help change things for the better, it is important to recognize that becoming a guardian for another will not fix all problems. There are particular responsibilities and limits that apply to guardians and guardianships.

There are many responsibilities that a guardian must take on. Some of the responsibilities of a guardian include:

• Paying the ward’s bills – This means that you become responsible for their finances, including any medical bills or other bills that may come with it.
• Make decisions about managing and investing the ward’s assets – As previously mentioned, the guardian is in charge of your ward’s finances and everything that comes along with it. In this case, handling a ward’s finances becomes a situation similar to handling an estate, which is why handling the ward’s finances must adhere to with Texas Estate Code standards.
• Ensuring the ward’s medical and personal living needs are met – The guardian is responsible for handling the ward’s medical needs as well as keeping the ward in good living conditions.
• Filing annual reports and accountings with the court that appointed the guardian – Paperwork needs to be filed regularly with the court to ensure that you are properly maintaining guardianship and are keeping up with the court’s standards.
• Seeking proper and appropriate court permission and approval for the actions he/she will take – If any changes need to be made to the agreement for one reason or another, you must seek approval from the court before making said changes.

If you or someone you love is incapacitated and in need of a guardian, contact Vance E. Hendrix, Attorney at Law. He will answer your questions about the guardianship process and make sure that your case is handled according to your specific needs. In addition, he can also more thoroughly review the responsibilities and limitations of being a guardian. Please call 903-944-7800 to schedule a consultation.