Guardianship

WHAT IS A GUARDIANSHIP?

Definition: A guardianship is a Court supervised procedure where the Court gives one person the legal authority to make personal or financial decisions for a person who can no longer make such decisions for himself or herself.

Incapacitated Person: A person for whom a guardianship is necessary is known as an “Incapacitated Person” which is defined as:

  • a minor;
  • an adult who, because of a physical or mental condition, is substantially unable to:
    • provide food, clothing, or shelter for himself or herself;
    • care for the person’s own physical health; or
    • manage the person’s own financial affairs; or
  • a person who must have a guardian appointed for the person to receive funds due the person from a governmental source.

Purpose of Guardianship: Unless a Court determines that a guardian with full authority of an Incapacitated Person is necessary, the Court should limit the authority of the guardian so that it is the least restrictive authority possible. Texas Law provides that:

  • A court may appoint a guardian with full authority over an Incapacitated Person; or
  • A court may appoint a guardian with limited authority over an Incapacitated Person;
    • As indicated by the incapacitated person’s actual mental or physical limitations, and
    • Only as necessary to promote the well-being of the person.
  • Except for minors, the Court may not use age as the sole factor in determining whether to appoint a guardian of the person.
  • In creating a guardianship that gives a guardian limited power or authority over an Incapacitated Person, the Court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person.

Guardian: A guardian is the person who accepts the Court’s appointment to be responsible for making decisions for the Incapacitated Person. A Guardian has only those powers specified in the Order Appointing Guardian. Generally, two types of guardians exists:

  1. Guardianship of the Person – A guardian of the person has the:
    1. right to have physical possession of the Incapacitated Person and to establish the Incapacitated Person’s legal domicile;
    2. duty of care, control and protection of the Incapacitated Person;
    3. duty to provide the Incapacitated Person with clothing, food, medical care and shelter; and
    4. power to consent to medical, psychiatric, and surgical treatment other than the in-patient psychiatric commitment of the Incapacitated Person.
  2. Guardianship of the Estate – A guardian of the estate of the Incapacitated Person has the following powers and duties:
    1. to possess and manage all property of the Incapacitated Person;
    2. to collect all debts, rentals or claims that are due to the Incapacitated Person;
    3. to enforce all obligations in favor of the Incapacitated Person; and
    4. to bring and defend suits by and against the Incapacitated Person.

WHEN IS A GUARDIANSHIP NECESSARY?

Common Situations – intellectual disability, Alzheimer’s dementia, multi-infarct dementia, Down’s syndrome, Parkinson’s disease, closed head injuries, chronic mental illness*, excessive short term memory loss.

Guardianship Not Appropriate – treatable mental illness*, drug addiction, alcoholism, homelessness, spendthrifts, persons receiving only social security benefits (no Guardian of the Estate is necessary).

Less Restrictive Alternatives –  Court Investigators are to investigate the circumstances of each application to determine if a less restrictive alternative to guardianship is available. In counties without a Court Investigator, the attorney ad litem for the Incapacitated Person should examine these alternatives.

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