Guardianships are considered when elderly parents or a loved one with special needs are unable to make decisions, handle money appropriately or otherwise care for themselves.  At this point in their lives, although the process is complex, it will ultimately give you and your family the ability to make the best possible decisions for an elderly or incapacitated loved one.

Essentially, a guardianship designates another as the guardian of the estate or the guardian of the person.  Usually a guardian will be appointed by a court after a hearing is held to learn the specific facts of your particular situation.  Establishing a guardianship can be a sensitive subject, and it is often challenging for clients and family members alike, and those challenges can escalate into court actions to contest the guardiahip.

Guardianship:  Although there is no statutory definition of a “guardianship,” the Texas Estates Code provides that the policy and purpose of a guardianship is to grant another person or entity limited authority over an incapacitated person to the extent required by such person’s mental and/or physical limitations.  Authority is limited to that necessary to promote and protect the incapacitated person.

Guardian:  A guardian is the person or entity appointed to serve as the legal representative of an incapacitated person.  IT includes a person or entity who is appointed as permanent or temporary or as successor guardian.  except when the Texas Probate Code expressly provided otherwise, the term guardian includes the guardian of the estate and the guardian of the person of an incapacitated person.  Tex. Prob. Code Ann. sec. 601 (11)

When does a person need a guardianship?

A person is in need of a guardianship when the court determines that the person is “incapacitated”.  A person is determined to be incapacitated by a court when that person lacks the capacity to do some, but not necessarily all, of the tasks necessary to care for himself or herself or to manage his or her property.  A person is totally incapacitated if he or she lacks the capacity to perform any task necessary to care for himself or herself or his or her property.  A person is partially incapacitated if he or she lacks the capacity to perform some task but has sufficient capacity to perform other tasks necessary to care for himself or herself or his or her property.   Determination of incapacity of an adult proposed ward must be evidenced by recurring acts or occurrences within the proceeding six (6) month period, and not by isolated instances of negligence or bad judgment.

ALTERNATIVES TO GUARDIANSHIP

Durable Power of Attorney: A durable power of attorney is a document by which an individual, known as the principal, designates another to act as his or her agent in financial matters. If properly drafted, a durable power of attorney will survive the principals’ incapacity and, thus the agent may continue to act on behalf of an incapacitated principal.  This is a much class costly way for a person to provide for the management of his or her financial affairs in the event of incapacity.

Medical Power of Attorney: Similar to a durable power of attorney, a Medical Power of Attorney for health care is a document by which an individual may delegate to an agent the authority to make health care decisions.  The agent under a durable power of attorney for health care may make any health care decision on the principal’s behalf that the principal could have made but for the principal’s lack of capacity to make such decision.

Directives to Physicians: This is more commonly known as a “living will.”  A “competent” individual may execute a written directive regarding the use of “life-sustaining procedures” in the event the individual has a terminable or irreversible condition certified by two (2) physicians.