What is Guardianship?
People are often confused by who exactly a guardian is and what that means.
In regards to elderly, incapacitated individuals, I have often heard people say they are their parent's guardian or that they were named as the guardian when in fact they are not technically the "legal guardian" of such a person. Many times I find that they are either appointed as their agent acting under a power of attorney or a person has named them to serve as guardian in the event they become totally incapacitated but such circumstance has not arisen and they have not been legally appointed.
In regards to mentally incapacitated adults (non- minor individuals), guardianship [over "the person"] is often necessary, once that mentally incapacitated individual reaches the age of 18 years of age. The most common encounter is when a parent of a mentally incapacitated individual is nearing (or has recently attained the age of 18 years of age) and the parent is told by the school or a social services care program that such a parent should or must be legally appointed as the individual's guardian to continue to obtain and control the individual's daily school records, choices, and information. Guardianship of the person of that individual may also be necessary in regards to their health care decisions and also as a representative payee of any governmental financial benefits.
In regards to minor children, please see further below on this webpage.
How to obtain a legal guardianship?
In order for this to occur, you will work with an attorney who will first apply with the proper court to have such a broad power over someone, have a hearing in front of a Judge and if approved, be officially appointed and qualified by the Judge to have such powers.
At this time, you will obtain official "Letters of Guardianship" evidencing your authority to act on behalf of such incapacitated individual. After such appointment, legal requirements are imposed on you, as guardian, to file annual reports with the court regarding the whereabouts and health of the person you are appointed as guardian over (e.g., guardian of the person) and in regards to the funds you control of such incapacitated person (e.g., guardian of the estate).
Guardian of the Person vs. Guardian of the Estate
In Texas, guardianship of one person can be segregated into two roles. You could have one guardian in regards to your "person" and one in regards to your "estate".
Guardian of the Person
The guardian of your person would have power and authority over your physical whereabouts and medical care concerning your person.
Guardian of the Estate
The guardian of your estate, although you would still be alive, would have power and authority over your financial affairs.
It is not uncommon that a person could have a separate person who acts as the guardian of their person but have another act as guardian of their estate (i.e., finances). The two often have to work together so that daily living expenses, nursing home bills, medical bills, etc. are properly taken care of.
When do legal guardianships become necessary?
Guardianships of Incapacitated Adults (anyone over 18 years of age) vs. Guardianships of Minor Children
If an incapacitated adult does not have properly executed financial and medical powers and action becomes required so that another person can help the incapacitated person, it may be necessary for the court to become involved. Although a person has the right, under Texas law, to plan ahead while they are competent to name a person to act as their "agent" under a financial power and/or medical power of attorney, if they do not, the court must make sure that the person is protected.
Although the law understands that the majority of persons with incapacities are fully capable of providing for their own needs and that the law presumes that all persons with incapacities have the legal capacity to manage their own financial and medical affairs, the fact is that there are persons with disabilities or incapacities so severe that they are not able to care for themselves and manage their financial assets. The fact is, not every person who becomes incapacitated took the opportunity to plan ahead and have the proper documents in place to protect themselves. That is the reason the law provides for legal guardianships of such persons.
The Good and the Bad of Legal Guardianships
Under these legal guardianships, the law makes sure that someone is not trying to take away another's person's rights, when it is not necessary. The law must also act to protect that incapacitated person's well-being and financial property by requiring the legally appointed guardian to thereby report to the court for almost every action they take in regards to that incapacitated person. These restrictions under the law are what make guardianships such an ongoing and cumbersome, legal process.
The flip side of these restrictions is the goal of why they are imposed. So suppose you are convinced, either as the person wanting the power or the person planning for the future, that you don't want this guardianship. It is hassle. Now imagine this scenario. The incapacitated person continues to act on her own behalf. She is easily persuaded by a distant family member to give them all of her money. Maybe she meets a con-artist at the nursing home where she lives. She falls in love with him and he convinces her to quit spending money on the nursing home care and come live with him and he'll "take care of her". No one can change her mind and no one has the legal authority to control her whereabouts, medical care, or her assets that are truly needed for her care and support. In hindsight, the procedures with the court don't look so bad after all.
Goals and Policy Behind Guardianships
With the above said, it is not always a black and white issue. The court can grant different levels of authority and power to a guardian. Typically, the court wants to use the least restrictive alternative but still balance that with the protection of the incapacitated person.
Guardianships of minor children are necessary when a minor child no longer has a surviving parent to care for them. Legal guardianships are different from what is commonly referred to as "custody" or "conservatorship" of a minor handled by child custody cases in district court (and typically, family law attorneys). A generic distinction between "custody" vs. "guardianship" can be thought of as a possession issue vs. a legal authority issue.
Texas law surrounding guardianships of minor children involve the probate laws which encompass deceased and incapacitated persons.
Guardian of the Person (of Minor Child)
In general, both parents are the natural guardian of the person of a minor child who is born of their marriage but if one parent passes, the survivor is the natural guardian of the person of the minor child.
Guardian of the Estate (of Minor Child)
In general, if one parent is dead, the surviving parent is entitled to be appointed as guardian of the estate of the minor child.
There are always exceptions.
When both parents are deceased or incapacitated
Texas [probate] law includes a statutory "pecking order" of who is to serve as a guardian of a minor child when both parents are deceased.
After the death (or incapacity) of the surviving parent of a minor child, the court will look to any written declarations of that surviving parent to determine who will serve as guardian of such minor child. This can be declared either in that surviving parent's will or in a separate stand alone document declaring that last surviving parent's wishes. If the court finds that such named person is disqualified to serve, is dead themselves, they refuse to serve or if it is just not in the best interest of that child, the court would typically look to the "pecking order" mentioned above.
If you do not fully know and understand the order of who has priority under this list, you should speak with an attorney. (I can explain these issues to you.)
Consider this: Oftentimes grandma and grandpa on both mom and dad's side could not bear to "part" with the child and it could end up in an emotional and legal battle. Additionally, consider the respective ages and abilities of grandma and grandpa. Would you and your husband agree or disagree about which aunt, uncle, or close friend you would choose? Isn't it worth the discussion and documentation in a properly documented legal instrument?
Although I have seen many couples prefer not to rock the boat and have a discussion that they feel really does not need to happen. If this is you, just realize that
|... your lack of action means that the court will make the decision for you if something does happen and you have not planned ahead.
The Initial Legal Proceedings- Who Protects the Ward (i.e., the Minor Child or the Incapacitated Adult)
When a person ("Applicant") applies with the court to become appointed as another person's legal guardian ("Proposed Ward"), the law makes sure that the rights of the Proposed Ward are protected by appointing an attorney ad litem. That means that the Judge who's court the proceeding is in will actually appoint an attorney to represent the Proposed Ward. If the Proposed Ward is unable to communicate, then the attorney ad litem represents that Proposed Ward's best interest. If the Proposed Ward is unable to pay, the court appoints a county paid attorney to represent their best interests. I have often been appointed as this ad litem attorney to represent the Proposed Ward or his best interests. The Court also appoints a Court Investigator who serves as an unbiased party to gather relevant factual information concerning the the Applicant and the Proposed Ward.
Term of Appointment- When does the legal Guardianship End
Guardian of Incapacitated Adult
Unless the role of guardian is being undertaken as a temporary role or unless otherwise discharged by law, the guardian will remain as the legal guardian until 1) the ward dies, 2) it is found by the Court that the ward has been restored with the full capacity to care for himself and manage his property, or 3) when the ward no longer must have a guardian appointed to receive funds from any governmental source.
Additionally, the guardian's authorities and powers can be modified without being fully terminated by future court proceeding.
Guardian of Minor Child
As for legal guardianships of minors, the guardianship would terminate when such person is no longer a minor.