People of all ages can benefit from creating a legal guardianship relationship, especially young children and disabled adults. When someone suffers major injuries in a car accident or becomes seriously ill, they often need a trusted individual to step in and manage critical matters for them. Your lawyer can draft this type of document as part of your overall estate plan.
It is important to keep in mind that guardianship status may be either temporary or permanent, depending on the circumstances. Both young children and seriously ill adults may sometimes need a long-term guardian.
Exactly how is a legal guardianship created in Texas?
This legal relationship develops after court documents are filed indicating that someone referred to as a “ward” (who is “incapacitated” by age or physical disability) needs a person appointed by the court to properly manage his/her healthcare needs or financial affairs. The person appointed to care for the ward is referred to as the “guardian.”
What follows is a closer look at the four types of guardianships available in Texas and the categories of people often designated as guardians of children or adults. The key responsibilities these court-appointed parties must often handle are also detailed – along with alternatives to naming a guardian.
A closer look at the four guardianships currently available in Texas:
- Temporary/Emergency Guardianship. This type of appointment is made while the court
reviews all available facts to decide who should hold this position on a more permanent or ongoing basis in the future.
- Guardian of the person and the estate. The person assigned this role must be prepared to manage all the physical care needs and property of the designated ward.
- Guardian of the person, limited or full – this person will be responsible for handling all the daily needs their ward might have involving food, clothing, medical care, housing, and other basic requirements.
- Guardian of the estate, limited or full. This guardian only needs to be concerned with managing a ward’s financial affairs and property.
Who is most likely to be appointed as the guardian of a child or adult ward in Texas?
When the ward is a child, the adults most likely to be granted guardianship are named below, in the order they are likely to be considered.
- The parents
- An adult designated as the guardian by the last surviving parent
- Grandparents or aunts/uncles
- A non-relative who the court believes can competently serve as the child’s guardian
When the ward is an adult, the people named below may be granted guardianship — in the order they are likely to be considered.
- The person selected by the ward — who made the designation prior to becoming incapacitated.
- The spouse of the ward.
- A non-relative adult who the court decides can serve as a competent guardian.
What duties and tasks must a guardian be prepared to handle in Texas?
- A guardian may need to post a bond with the court to guarantee that s/he will properly handle all appropriate responsibilities and duties. This bond will be treated like an insurance policy to protect the ward’s property and assets — should the guardian act inappropriately and cause financial losses to the ward’s estate.
- A Texas guardian must be prepared to make all decisions regarding assets in the best interest of the ward. In other words, there must be no self-dealing or improper gain or profit for the guardian.
- An appointed guardian should try to provide the best quality of goods appropriate to meet all the ward’s daily needs for food, shelter, clothing, medical care, education, and other requirements.
- Every guardian must be prepared to file an annual account with the court. In this document, the guardian must specifically list all the purchases and disbursements made during the prior year — using specified funds on behalf of the ward.
- An annual inventory must be provided to the court, listing all the ward’s current assets.
- When a ward has special or unique needs come up, it is always wise for a guardian to obtain the court’s permission to purchase the necessary goods or services – unless they pertain to immediate medical needs.
How can these same kinds of needs be met in Texas without obtaining a guardianship?
It may be necessary for your Houston estate planning attorney to create one or more of the following documents to take the place of designating an appointed guardian in this state.
- You may need to have a Medical Power of Attorney document drafted for you, in keeping with Chapter 166 of the Texas Health & Safety Code.
- You may want your lawyer to prepare a management trust, in keeping with the terms found in Chapter 1301 of the Texas Estates Code.
- It may be necessary for your lawyer to create a special needs trust for you.
- You may want your lawyer to draft a Durable Power of Attorney document that will name or appoint an attorney-in-fact or agent for you.
- It may help to create a joint bank account for you and a trusted family member.
While the list above is not intended to be comprehensive, it should indicate that there are many other ways to meet the many needs covered by the appointment of a Texas guardian
Please feel free to contact one of our Murray Lobb attorneys so we can answer all of your questions about your estate planning needs. Our firm is also available to provide you with legal advice regarding many other general business topics — and to draft a wide variety of contracts and other documents you need to transact business daily