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What exactly is a guardianship? When is it necessary?

When learning about guardianship, the first thing to know about is proper terminology. Many people use the terms guardianship and conservatorship interchangeably, and in some states conservatorship is the proper term. Under Texas law, the correct term is guardianship

When someone is incapable of making their own decisions, either due to a minor age or incapacity, a court can appoint an individual to do this for him or her. The appointed person is called the guardian and the minor child or incapacitated adult is called the ward. A guardian can be appointed to make decisions on behalf of the ward, the ward's estate or both.

Under Texas law, there are very strict standards and specific procedures for appointing guardians. First, the ward must meet the definition of a minor or incapacitated person. Determining a minor is the easier case, simply requiring proof that the person is under 18 years of age, unmarried, and has not been emancipated by a court.

For an incapacitated individual, there must be substantial evidence that the ward is unable to manage their finances, provide necessities for himself or herself, or make sound decisions about his or her physical health. 

The Texas Guardianship Association provides answers to frequently asked questions such as those above. Providing proof of incapacity in an actual proceeding can be difficult, and that is only part of the complex process. Those who are concerned about a loved one and want to be appointed guardian or have one appointed should discuss their situation with an estate planning and probate attorney.

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