When you are young, your parents care for all your needs. They work to ensure you have food on the table and clothes to wear. They tell you to brush your teeth and send you off to school. As you enter adulthood, your parents may offer advice on how to find a good job, purchase a home, and raise a family.
It is difficult to imagine a future time when those same vital parents begin to slip away. Because of age or disease, they start to forget small things. A bill might go unpaid. Medication isn’t taken. They stop bathing and picking up around the house. Maybe you find out they gave $1,000 to their neighbor.
When you see they are neglecting their own welfare, it is time to consider legal guardianship.
What Is Guardianship?
Guardianship is a court-created and monitored relationship that takes legal rights away from one person (called a ward) and gives those rights to another person (called a guardian). In most guardianship cases, the ward is incapacitated and unable to provide for their physical health (food, clothing, shelter, medication) or manage their personal financial affairs.
There are four types of guardianship in Texas:
- Guardian of the Person. This guardian has control over the ward’s personal matters including housing and medical decisions.
- Guardian of the Estate. Instead of personal matters, this guardian oversees matters related to financial affairs.
- Guardian of the Person and Estate. Instead of overseeing one aspect of the ward’s affairs, this guardianship is responsible for managing the person, property, and finances.
- Temporary/Emergency Guardianship. A temporary guardianship is appointed when immediate action is required to protect a person or their estate or both. In Texas, these appointments are in effect for 60 days.
Texas law allows for a court to customize any guardianship to the specific needs of the ward. Guardianships can be limited, with the court specifying the matters that a guardian handles while the ward retains all other rights.
The Springer Law Firm can help you decide what type of guardianship makes sense for your loved one or if an alternative should be considered. Call us at (281) 990-6025 to schedule a consultation.
Who Can Be a Guardian?
Only one person may be appointed as guardian of the person or the estate, but different persons can be guardians of the person or estate. There is a hierarchy in how Texas courts choose a guardian.
The order in which a person can be considered for guardianship is the following:
- The ward’s spouse
- Nearest of kin to the ward
- The person best qualified
Preference is first given to the ward’s spouse, adult children, and other family members because they are most familiar with the person’s needs. When a relative or friend is not willing or qualified to be a guardian, then the courts can appoint a professional or public guardian.
Steps to Becoming a Guardian
When you and your attorney have determined that guardianship is the appropriate course of action, the first step will be to file an application with a court, and then a hearing before a judge will be scheduled. An attorney ad litem will be assigned to the incapacitated person to ensure their rights are protected.
You will most likely have to testify at the hearing and present documentation (Certificate of Medical Examination) from a physician asserting the person lacks the capacity to take care of themselves. A bond is required if a guardian of the estate is appointed. There is a legal requirement to furnish clear and convincing evidence of incapacity.
There will be ongoing legal requirements after being named guardian. A guardian must file annual reports or accountings with a court depending on the type of guardianship.
An appointed guardianship is often permanent, but there are circumstances when changes are necessary. A limited guardianship could be expanded if the ward’s condition deteriorates. A guardianship could be terminated if their condition improves. These changes also are made through the courts with the help of an experienced attorney.
Alternatives to Guardianship
Guardianship is a serious intervention and should only be used as a last resort.
Other avenues can potentially be appropriate to take care of your loved one, including:
- Social Security. The Social Security Administration allows a person’s benefits to be sent to that person’s representative payee, guardianship not required.
- Public Benefits. A family member can act as the authorized representative to receive food stamps, Medicaid, and other public benefits for that person.
- Emergencies. A family member can make decisions for a person hospitalized or in a facility if that person is unable to communicate.
At The Springer Law Firm, we can help families eliminate the need for a named guardian by taking steps before a person becomes incapacitated; helping the person designate someone to make decisions for him or her when needed.
We can help you with the following estate planning:
Our Personal Approach
Our legal team at The Springer Law Firm is dedicated to understanding your situation and your goals. Employing a personal approach, we work with you to find a resolution to the problems you face. Guardianship is a sensitive and complicated process, and we will stand beside you throughout each step.
If you believe you may need to take guardianship of an elderly loved one or you want to consider alternatives, contact us today using our online form or by calling (281) 990-6025.