In Texas, a guardianship is a judicially created and monitored relationship in which Texas courts appoint a guardian to oversee the mental, physical, psychological, and/or financial needs of a person. The Texas Guardianship Association defines guardianship as "a legal process designed to protect vulnerable persons from abuse, neglect (including self-neglect), and exploitation. Guardianship provides for the person's 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."
Guardianship, then, is meant to provide for a person who is otherwise incapable of managing his or her care and/or financial affairs; however, the extent of the guardianship will be tailored to permit the person in need of the guardianship to exercise his or her rights and decision making authority to the extent to which he or she is able. Therefore, understanding what guardianship is and the alternatives to guardianship are critical to ensuring the provision of care for an adult or a minor in need of care and assistance.
Relevant Guardianship Terminology
As with any area of law, guardianship has its own terminology, and understanding the terminology is key to understanding the roles of the people and entities involved:
Ward - an adult who, due to injury, illness, developmental disability, or disease, a court has determined that he or she has been rendered incapacitated to care for his or her needs and well-being--physically, emotionally, psychologically, and/or financially. The term "ward" may also refer to a minor, who in Texas is an individual under the age of 18, that needs someone appointed for his or her care, or stands to receive money or inheritance.
Guardian - a person who the court has appointed with the authority to manage the well-being and/or finances of the ward.
Incapacitated - under the Texas law, an individual is incapacitated as "a minor; an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs; or a person who must have a guardian appointed to receive funds due the person from any governmental source.
Attorney ad Litem - Court appointed attorney who represents the interests of the person who is in need of the guardianship.
Guardian ad Litem - Court appointed attorney who represents the best interests of the person who is in need of the guardianship.
Types of Guardianships
There are different kinds of guardianships that a court may establish, including Guardianship of the Person, Guardianship of the Estate, and Guardianship of the Person and Estate.
Guardianship of the Person - A guardianship created to manage and provide for the physical, emotional, educational, psychological, and social needs of a Ward.
Guardianship of the Estate - A guardianship created to manage, protect, and preserve the assets and finances of a Ward.
Guardianship of the Person and the Estate - A guardianship created to manage and protect the physical, emotional, educational, psychological, social, and financial needs of a Ward.
Within these type of guardianships, the court may create a total or partial guardianship, depending on the facts and needs involved in a particular case. In a partial guardianship, the Ward retains all rights not restricted by the court.
Who May Serve as Guardian
Texas law has established a priority of persons who may serve as guardian of an adult or a minor. Though a person may be of a higher priority to serve, a person who seeks appointment as a guardian must not be disqualified by law to serve. A person may be disqualified to serve where he or she is a minor, has notoriously bad conduct, is incapacitated, has a claim adverse to the ward personally or to the ward's property, is indebted to the ward and does not repay the debt prior to appointment, is incapable, due to inexperience, education, or other good reason, of managing the ward or the ward's estate, or is a nonresident of the state of Texas and has not appointed a resident agent for service of process, or is otherwise unsuitable.
Alternatives to Guardianship
Though an individual may be in need of care and assistance with managing his or her affairs, guardianship may not be an available option where other viable alternatives may exist for provision and management of that person's well-being. Some alternatives to guardianship include powers of attorney, management trusts created by the probate court, or money management programs.
Guardianship and Probate Attorney John B. Henry, III, understands the difficult and complex decisions in pursuing guardianship or alternatives to guardianship for a loved one, and Mr. Henry is committed to assisting his clients with compassionate and comprehensive representation. Schedule a consultation with Mr. Henry's office to initiate the process in understanding the options available for the care of a loved one--whether establishing or modifying a system of support and management for their needs and affairs.