Guardianship is a Serious Matter
Guardianship proceedings are serious matters because courts are charged with ordering the least restrictive degree of control needed to ensure an incapacitated person’s physical and financial well-being. A person being considered for guardianship is known as the “proposed ward.” These proceedings tend to be relatively straightforward when the proposed ward is a minor child in need of care. These proceedings for an adult who is alleged to be incapacitated, rightfully, draw more scrutiny.
Two Types in Texas
There are two types: (1) guardianship of the person and (2) guardianship of the estate (or property). Either type, both or neither can be ordered. A court can appoint different persons to fulfill each of these two roles. Sometimes a close relative is the right person to provide loving care for the proposed ward’s physical needs yet not qualified to manage the proposed ward’s substantial and diverse assets.
Guardianship Results in Restricted Rights
Appointment of a guardian can materially limit the rights and privileges of the proposed ward in areas such as:
- Choosing a residence.
- Providing informed consent to medical treatment.
- Making end-of-life decisions.
- Entering into contracts.
- Obtaining a driver’s license.
- Owning, possessing, or carrying a firearm or other weapon.
- Filing law suits.
Right to Due Process
In order to safeguard the proposed ward’s right to due process, he or she must be provided with notice of the proceeding and entitled to attend all court hearings. In addition, the proposed ward may be represented by his or her own attorney, present evidence, and confront and cross-examine all witnesses.
Guardianship of the Person
Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the proposed ward, including making important medical decisions. The appointed guardian is normally tasked with the following responsibilities:
- Determining and maintaining residence.
- Providing informed consent to and supervising medical treatment.
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling.
- Making end-of-life decisions.
- Maintaining the protected person’s autonomy as much as possible.
Guardianship of the Estate or Property
Guardianship of the estate or property empowers the guardian to make important financial decisions on behalf of the proposed ward, including:
- Organizing, gathering and protecting assets.
- Arranging appraisals of property.
- Safeguarding property and assets from loss, whenever possible.
- Managing income from assets.
- Making appropriate payments.
- Obtaining court approval prior to any sale of major assets.
Guardians Remain Responsible to the Court
Guardians remain responsible to the court until guardianship is terminated. The guardian may be required to report to the court about his or her activities on an annual basis. Guardianship of a minor child terminates when the child reaches majority age. Guardianship of an adult terminates naturally upon death. Guardianship also can be terminated by a court if and when capacity is regained. For more information, please contact the estate planning attorneys at Cramp Law Firm, PLLC.