Legal Blog
26
November
WHAT IS A GUARDIANSHIP AND WHY MAY A PERSON NEED ONE?

An “incapacitated person” who is unable to fully care for himself or herself or manage his or her property may need a third party to file for a guardianship on his or her behalf in a Texas Probate Court.  The Texas Probate Code defines an incapacitated person as (1) a minor; or (2) an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.

Texas Probate Courts can appoint a guardian of the person, a guardian of the estate, or both as is in the best interest of the Ward.  A guardian of the person will generally make decisions on behalf of the Ward regarding the day-to-day and medical care of the Ward. A guardian of the person will also generally be given the authority to determine the residence for the Ward.  A need for a guardian of the person may arise if an incapacitated person clearly needs to reside in an assisted-living facility, but the incapacitated person is not cooperating with the family member who is trying to accomplish that end.  Until the right to determine residence is vested in a guardian, the incapacitated person can simply walk out of any facility.  In necessary cases, a guardian of the person can be given the binding authority to determine the Ward’s residence.

A guardian of the estate will generally take possession of and manage all of the Ward’s property while ensuring that the Ward’s living expenses are paid monthly.   A guardian of the estate may be necessary in instances where an incapacitated person has exhibited poor decision making with his or her property, is easily susceptible to scams, or is being unduly influenced by a person who is soliciting unlimited “gifts” or other transfers of property from the incapacitated person.    The appointment of a guardian of the estate will prohibit such continuing issues.

Creation of a guardianship of the person and/or estate for a Proposed Ward is a relatively straightforward process in a Texas Probate Court.  We regularly represent clients at Wolff Law, PLLC in the establishment of guardianships of the person and estate, and represent those guardians during the continuation of the guardianship.  We would be happy to discuss guardianships with you in more detail to help you determine if creation of one might be necessary for your family member or other loved one.