Category Archives: Guardianships

Becoming a guardian

A legal guardian is someone who has been authorized by the courts to care for another individual, such as a child or elderly individual. For elderly individuals, a guardian is usually appointed when the elderly person becomes unable to make his or her own decisions or care for his or her health and well-being, as well as financial matters.

Incapacitated individuals who are married usually have their spouse appointed as their guardian, since they are the closest relative. If the individual is not married or their spouse is unable to be a guardian, the closest relative after is usually the next eligible person. However, if more than one relative exists of equal eligibility, the court will decide which is most qualified.

When there are no eligible family members, a court may appoint a guardianship program, a financial institution or a bank to care for the needs of the ward. In some instances, a state agency, such as the Texas Department of Protective and Regulatory Services could be appointed.

While courts attempt to put an incapacitated individual’s best interest first and foremost when appointing a guardian, it is much better if a guardian is selected by the individual before he or she becomes incapacitated. Individuals should consider having papers drawn up by an attorney to appoint a guardian of their own choice in preparation, just as they should consider having a will drawn up when they are young.

Those who are applying for guardianship should understand the responsibilities they are being assigned. Properly fulfilling a guardianship role is extremely important, and the legal jargon can be quite confusing. If you have been or will be appointed as a guardian, you may need to speak with an attorney to be clear about your role and duties. You may have to make substantial decisions on behalf of your ward and should be well prepared.

Not everyone can be assigned as a legal guardian. For instance, minors cannot be a guardian of another individual. Others who might disqualify include someone who owes a debt to the individual who would be his or her ward, a person who might have a lawsuit against the ward or a person who has shown bad conduct, as well as those convicted of certain crimes.

Source: Texas Guardianship Association, “Guardianship Qualification,” accessed May. 14, 2015

Reasons to set up a guardianship

There are countless important decisions that parents must make in the course of raising their children to adulthood. One of the most critical, however, is providing the best options for their care if something should happen to mom and dad. Choosing someone to look after them physically until they grow up and having that person or couple willingly agree to do so can give parents immeasurable reassurance. Naming the choice in a last will and testament may reenforce the chance that those wishes will be honored.

Financial considerations shouldn’t be discounted. Minor children need someone to manage money for their care and see to it that their inheritance, of whatever nature, is protected until they are old enough to manage their own finances and property.

Some people are born with limited mental capacity for a myriad of reasons. Reaching adulthood might not make a difference in their abilities. Others may suffer injury or illness that leaves them without the wherewithal to care for themselves as adults. A court may authorize an individual to act as a guardian. The guardian will provide the necessary physical assistance and financial management needed to care for the person.

These instances are some of the reasons to set up a guardianship. Texas law defines an incapacitated person as one who is mentally, physically or legally incompetent, and includes minor children. They may be judged so by a court based on incompetence, having an unsound mind or being a habitual drunkard. County court jurisdiction applies to petitions for guardianship, including appointing the guardians of minor children according to estates.

In certain circumstances, the court may appoint a guardian ad litem to represent the interests of a minor child or other incapacitated person during guardianship proceedings. For example, if a guardianship wasn’t specified in a will, and multiple individuals have stepped forward to assume the role, a guardian ad litem will safeguard the incapacitated person’s well-being as decisions are contemplated.

Source: FindLaw – Texas Statutes, “Chapter XIII: Guardianship,” accessed April. 09, 2015

What rights might be impacted by a guardianship?

A guardianship sometimes occurs when a person is no longer physically or mentally capable of making sound decisions about personal or business finances, property or legal matters. A guardianship can be an effective vehicle by which a person and one’s property is protected, particularly when care and compassion are part of the process. However, there are legal ramifications to guardianships, including an impact to the person’s rights.

Generally, courts can appoint guardians in various capacities, so all the rights of a person are not impacted. In some cases, a person may still be able to make his or her own decisions regarding certain matters — for example, one may have the legal capacity to decide for oneself on medical matters or vote, but not have day-to-day functionality to handle the complex details related to financial matters.

Some rights that could be impacted by a guardianship include the ability to determine where you live, consent to or deny certain medical treatment, drive with a valid driver’s license, make decisions about end-of-life care or own a firearm. Other rights that may be lost include the ability to sign contracts or file lawsuits, enter into marriage or sell or buy property.

When guardianship is established, the person taking guardianship may be able to do many of these things on your behalf. This makes it essential for you to consider carefully who you might have as your guardian — in some cases, you can note guardianship preferences in estate documents. In other cases, family members and friends seeking to place someone in a guardianship situation should carefully consider who they appoint to best protect their loved one.

Source: National Guardianship Association, “What is Guardianship?” accessed Feb. 27, 2015

Texas guardianship application process

When a loved one becomes incapacitated for any reason, the option to file for guardianship exists for many family members and even some friends. A guardianship lets you step in to manage important decisions or even acts of daily life when someone is not able to do so for him- or herself.

According to the Texas Guardianship Association, individuals seeking guardianship over another must file an application. The application is submitted in the county where the potential ward lives, which is not necessarily the same county where the proposed guardian lives. Applications must also come with an examination by a physician or psychologist, depending on the nature of the incapacity.

Though applications differ across the state, most require similar information. Applicants will have to provide demographics about themselves and the potential ward and whether guardianship is being sought over the estate, the individual person or both. The potential guardian will also need to detail the reason guardianship is necessary and why the applicant is the right person for the duty.

Unique information may be required in cases involving minors, the elderly or the mentally handicapped. Once the application is filed, a citation is served on the potential ward, and a court investigation may occur. Court investigators will review the application and associated documents, and may also interview family members, the potential ward and guardian, and any professional care providers such as social workers, therapists and physicians.

Others may contest a guardianship application and make a case before the court. The court must find that the potential ward is incapacitated, requires a guardian and the guardian will protect the ward’s rights and property before granting guardianship. In some cases, legal assistance may help to increase the chances of a desired outcome.

Source: Texas Guardianship Association, “Guardianship Process” accessed Jan. 16, 2015

Why a guardianship may be used in Texas

People often think of guardianships in Texas as establishments that are primarily set up for minors; if someone does not have a parent or relative to take care of them, a guardian can be given that responsibility. While this does happen, it is also important to remember that these arrangements may also be used by people as they grow older. In fact, the elderly tend to use them because:

– The effects of aging are getting to be too much.- They have limited mobility or physical abilities.- They are suffering from diseases or other health conditions.- They are suffering from mental ailments.- They need help with day-to-day activities.

The downside to a guardianship is that the rights of the first person, also known as a ward, can be diminished. The guardian is then able to make decision on that person’s behalf. This could include decisions about the ward’s health, assets and estate plan. In some cases, a guardian may be in charge of distributing money or authorizing purchases.

Courts can put specific limits on how much power and authority a guardian has. Because this is such a serious situation, there are legal steps that must be taken to make sure that everything is done properly.

On the other hand, a guardianship can be very helpful. Someone who is suffering from any type of ailment can get the help that he or she needs. As long as the right boundaries are respected and the person’s rights are not infringed upon, this can be a very helpful and positive change in his or her life.

Source: Texas Department of Aging and Disability Services, “A Texas Guide to Adult Guardianship” Dec. 01, 2014

Pros and cons of adult guardianship

What happens when your elderly parents become unable to handle their affairs — or you have an adult child who is mentally, physically or intellectually impaired? Who can legally handle his or her affairs?

This may be the time when a guardian needs to be appointed for your loved one. To be a guardian of another person’s affairs, such as finances or medical care, one must be appointed by a court of law. An application must be filed with the court, and then a judge will hear the case. If the court agrees, it will appoint a guardian. The person who the guardian is appointed for then becomes a ward of the court.

Guardians have authority to perform certain functions and decision-making for the ward, but only those that are authorized by the court. Family members are often assigned as guardians of loved ones, with the assumption that they would have their ward’s best interests in mind.

What are the advantages of having a guardian for an elderly parent? Guardians may be able to pay bills for their wards and make financial decisions about their assets. They may also make decisions regarding medical treatment in the event the ward is unable to. The guardian can help to protect an elderly person from being taken advantage of or exploited. Finally, the guardian is accountable to the court and must submit accounting reports annually.

Are there reasons you may not want to have a guardian appointed for your loved one? Sometimes, a loved one’s welfare is taken away from family members in the event the court awards guardianship to someone outside the family. Wards may lose some of their basic rights to make their own decisions. Establishing a guardianship and maintaining court-required records may be expensive.

An attorney can help establish the details in a guardianship request depending on the needs of the potential ward. If you find that your elderly parent is making bad decisions or in danger of being exploited, seeking advice before it is too late is recommended.

Source: Texas Department of Aging and Disability Services, “A Texas Guide to Adult Guardianship” Oct. 30, 2014

Being a legal guardian is not an easy job

Guardians who are appointed to handle matters of an estate or life decisions for someone who is incapacitated have a lot on their plate. Often, individuals serving in guardianship capacities must make life-or-death or life-altering decisions for someone else. In some cases, guardians are in charge of financial resources for a person or estate. Any of those situations come with a great deal of responsibility.

Because of the level of responsibility and trust involved in a guardianship, no side should take the matter of appointing a guardian lightly. Individuals who are currently able to care for themselves may want to consider creating documents detailing guardianship wishes for the future. As it states on our guardianship page, if no guardian is appointed by estate documents, a family member or other interested party may seek to make themselves guardian should the situation demand it.

A person who is seeking to be made guardian or who is considering accepting a request to be a potential future guardian should understand all the requirements that come with that position. An experienced estate planning professional can walk individuals through the guardianship process on both sides, ensuring everyone is comfortable with future or current arrangements.

Other guardian matters that may involve legal attention include challenging a person who wants to be made guardian or challenging the fact that you need a guardian at all. Age should not be a factor when it comes to legal rights, which is why it’s important to understand estate planning options and how to legally protect your assets, life and wishes even during end-of-life years.


Some states have conservatorships but in Texas, we have guardianships. The purpose of a guardian is to act on behalf of a person who is either a minor or who is incapacitated and unable to make decisions for themselves. The minor or incapacitated person is considered the ward, and the guardian for the ward is appointed by the court to care for him or her and related property.

A person is appointed as either a guardian of a person, or he or she may be appointed as a guardian of the estate of the person. It is possible that the court could appoint one person as both, or separate individuals could be appointed for each. In either case, the appointed guardian is required to post a bond in whatever amount the court sets to ensure the duties as a fiduciary are fulfilled.

A guardian of a person is usually responsible for the total care and protection of his or her ward, unless the court has defined restrictions. The guardian has the authority to consent to medical treatment as well as psychiatric treatment for the ward. The guardian is also responsible for the ward’s shelter, food and clothing as well as other needs.

A guardian of the estate for a minor or incapacitated person is responsible for the financial assets of the ward. The guardian must file inventory reports of all assets. In addition, the guardian must also file yearly statements of assets, finances and expenditures.

Per Texas laws, guardianship for an individual is appointed based on a priority list. For instance, if a minor is in need of a guardian, his or her parents would be the first choice, a person designated by the ward’s last surviving parent would be the second choice, then direct relatives and on down the line. The court also has the right to use discrimination and pass over those who they believe are ineligible, inexperienced or incapable.

Guardianships come with an enormous responsibility and can be very complicated. Legal assistance is required for the implementation of most guardianships.

Source: Texas Probate Web Site, “Frequently Asked Questions About Guardianship” Sep. 04, 2014

Texas’ court appointment of guardianship may be ready for change

Sometimes the best intentions start out to be noble, but then somehow they get twisted and turn out doing more harm than good. That’s what advocates that are pushing for reform of the Adult Guardianship System in Texas have discovered. The program allows the state to have a guardian appointed for elder individuals who find themselves a ward of the state because they are unable to care for themselves.

One advocate is using what happened to a friend as an example of how the program may sometimes do more harm than good. Her friend, who was an 85-year-old woman, found herself an unwilling ward of the state after she passed out in a restaurant. After being taken to the hospital, it was determined that she was unable to care for herself. She was forced, against her will, to go into a nursing home and was given a legal guardian by the court. Then her home and possessions were put up for sale — no doubt a decision she would not have made, and may not have even known about. The woman died shortly thereafter. Friends and family are thinking that the guardianship did her more harm than good.

In Texas, there are about 46,000 individuals who have guardians assigned to them. More than 4,500 petitions for adult guardianship were filed between Sept. 2011 and Aug. 2012. Advocates are hoping to decrease these numbers, making guardianship a last option for elderly people. They are in favor of supported decision-making for the elderly as long as they can still make some decisions for themselves.

Like the 85-year-old woman, there are others who have had to fight to get their rights back after being put under guardianship. It will take an attorney, but they can fight to regain their independence.

The best option, however, is for people to plan their own guardianship before they become completely unable to care for themselves. By creating a will, a person can choose someone they trust to carry out their desires and intentions. This way, there is no possibility of a stranger making decisions for them that may not be in their best interests.

Source: National Association to Stop Guardian Abuse, “Advocates Push for Reform of Adult Guardianship System in Texas” No author given, Jun. 26, 2014

Guardianship: Who will get your children if you die?

Not even our El Paso readers like to think about dying, but it will sooner or later happen. The question is “when” and few of us can predict that. Therefore, like insurance, we should take care of preparing for our loved ones in the event it happens.

If you have a will or an estate plan, you are ahead of the game. If you don’t, you may be wondering why you need one. Let’s start with the most important reason.

What’s going to happen to your children? Who will get guardianship over them? If you do not designate a legal guardian, a probate judge may be deciding the fate of your children as well as what assets they get. A will allows you to designate a guardian of your choice.

It also, of course, allows you to decide how you would like your estate or assets divided. You may have treasured items that you would like a specific family member to have. If you don’t do your estate planning now, an outside party will do it for you.

Preparing a will or trust makes you take inventory of your assets. You can select who you want to handle your finances, investments and other important matters. Designate your beneficiaries.

Select an executor of your will. Someone will need to handle the distribution of your assets. You will want to choose someone who is not only trustworthy but also responsible and organized.

What if something happens to you where you become incapacitated? You may want to assign a power of attorney, where someone can handle your financial decisions in case you are unable. You can designate when they can or cannot use the power of attorney.

A living will, or advance medical directive, allows you a say in your medical care. In a living will, you can make all of your health care decisions while you are able. In case you are not able, you will have a written directive of your decisions. This is a good safeguard in the event that you are in a serious accident and are unable to voice your decisions., “Estate Planning: Get Ahead” No author given, May. 30, 2014