In our last post, we provided an overview of pursuing and avoiding guardianships in Texas. Now we will discuss the some of the basic requirements that must precede a guardianship.
Texas Recognizes Guardianships of the Person and Estate
Texas divides guardianships into two buckets—the estate and the person. A guardian of the person has control over the health and wellness of another person, called the “ward.” These powers include medical decisions, control over where the ward lives, and is generally responsible for the wellbeing of the ward. In contrast, a guardian of the estate is responsible for managing the ward’s finances, paying the ward’s expenses, and preserving the assets of the ward. An incapacitated person may have a guardian of the person and guardian of the estate, just a guardian of the person, or just a guardian of the estate. In situations where both types of guardianships are needed, the same individual can fill both roles, or different individuals can take on the two roles. For example, imagine that an incapacitated Alzheimer’s patient has two daughters—a CPA and a nurse. The CPA would be a natural fit as guardian of the estate, while the nurse may be better suited as guardian of the person.
Guardianship Orders of Legal Incapacity Are Required for Texas Guardianships
Texas law prevents the creation of a guardianship until a probate court enters an order that determines the proposed ward is an incapacitated person and appoints a guardian. In this context, an incapacitated person means:
an adult who, because of a physical or mental condition, is substantially unable to: (A) provide food, clothing, or shelter for himself or herself; (B) care for the person’s own physical health; or (C) manage the person’s own financial affairs.
As you may guess, if a person meets the requirements (A) or (B) above, then the court typically creates a guardianship of the person. Conversely, if requirement (C) is appropriate, then the court typically creates a guardian of the estate.
Most guardianships involve adult wards who meet the criteria above. That said, we should briefly mention the two other ways a person can be legally incapacitated. First, all minors are incapacitated persons. Formal guardianship cases rarely arise for minors, though, because parents have many automatic guardianship rights without need of a court order, and disputes between parents end up in family court as conservatorship cases. Second, persons who require a guardian to receive funds from the state or federal government count as incapacitated persons, but this reason for a guardianship is relatively rare in Texas.
In our next post, we will discuss one way to avoid a guardianship—lesser restrictive alternatives that make guardianships unnecessary. If appropriate, these measures can save time, cost, and intrusive court proceedings.
Our Dallas guardianship attorneys regularly enforce the legal requirements of guardianships to assist clients disputing and pursuing guardianships in the DFW area and throughout Texas. If you think we can help you, please give us a call. Our offices also service Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.