Texas guardianships: What you need to know

Many people have heard of guardianships, but don't know what is legally required to arrange for one.

You have probably heard people refer to guardians of children or incapacitated adults, but you may not have a good understanding of how these arrangements actually function. In this article, we will discuss the basic types of guardianships including what is required to put these arrangements in place.

Types of guardianships

In Texas, there are two different types of guardians, guardians of the person and guardians of the estate.

A guardian of the person is responsible for handling the care and protection of the ward (the person under the guardianship). A ward may either be an adult unable to care for himself or herself, or a child under the age of 18. Duties of the guardian of the person include establishing where the ward lives, providing food and clothing for the ward, and the power to make medical decisions on behalf of the ward.

A guardian of the estate manages the ward's finances and property. Duties include the purchase and sale of real estate or other property, Medicaid planning, and filing an annual accounting of the ward's estate.

What do I do to get a guardianship in place?

The guardianship process has several steps. First, a court needs to establish a ward's incapacity (either by the ward's age or through a doctor's statement). Once incapacity is determined, a court moves on to decide who the appropriate person is to act as the ward's guardian.

Who is usually appointed as a guardian?

The following is the order of priority for minor guardians: parents, a person designated by the parents, grandparents/great-grandparents and next of kin.

For adults requiring a guardian the order of priority is as follows: person designated by the ward before incapacity, the person designated by the last surviving parent of the ward (only in some cases), the ward's spouse and next of kin.

For any guardianship designation to be effective, it must be in a properly executed document. If people of the same priority are both willing to serve as guardians, a court makes the determination based on their qualifications. A court may also find people ineligible to serve as guardians based on certain criteria.

Consult with an attorney

The legal procedures for establishing a guardianship are complex, so the assistance of an attorney is very valuable. The courts require clear and convincing evidence to demonstrate incapacity, a high standard that a lawyer can assist with proving.

The attorneys at Hayes & Wilson are experienced in guardianships as well as other aspects of estate planning. They will advise you based on your unique situation and work to help you achieve your goals.

Keywords: guardianships, estate planning