Is A Guardianship Needed?
Guardianships may be sought in the case of a young person attaining the age of 18 years, an elderly person with declining capabilities, or anyone, who because of medical or other reasons is unable to make decisions regarding important matters. These decisions may involve the ability to enter into contracts, enter into legal proceedings, obtain a driver’s license, vote, make significant medical decisions or apply for admission to certain institutions that may provide care to that individual.
Often, it is necessary that someone be appointed to manage the affairs of that person. A “guardian of the person” may be needed. The guardian may be a close family member or an institution that obtains letters of guardianship to help manage the affairs of its residents. Guardianship proceedings may be agreed upon or contested.
Sometimes the guardian is one person responsible for both the ward as a person and the ward’s estate. Sometimes one person is appointed Guardian of the Person and another is appointed Guardian of the Estate.
If you have questions or concerns about these matters, our guardianship attorneys can help. We advise and represent clients throughout the Amarillo area and all of Texas. To arrange a consultation, please call 806-705-7546 or complete our contact form.
Guardianship Of The Estate
A guardian of the estate acts in the best interest of the ward regarding the ward’s property, assets, real estate, bonds and mutual funds, and other matters concerning the ward’s finances and investments. You may choose a person to act as a guardian of the person and another to act as guardian of the estate. There may be a situation in which you have a person whom you feel would be desirable as guardian of the person, but you know another person whom you feel very comfortable in handling the ward’s estate.
Guardianship Of A Minor
Parents are the natural guardians of their children’s “person”. As discussed earlier, a guardian of the person handles matters related to the care of the child. Examples are matters such as admitting the child to a hospital, obtaining medical care, determining residence etc.
However, if a child inherits a large sum of money or valuable property, the court will rule that the minor is not capable of managing money or property on his/her own behalf. Individuals younger than 18 years are legally incapacitated regarding their estate. Thus a guardianship proceeding must be initiated so a court can oversee the management of the child’s estate. However, Texas law does not guarantee that a parent will be appointed the guardian of their child’s estate. In most cases, a parent or both parents will be appointed guardians of their child/children’s estate, but there are also certain situations that can disqualify a parent from serving as guardian of their child’s estate. The appointment of parent/parents is not automatic.
If both parents die, a court will determine the guardian of the child’s person and estate. The Probate Code gives some guidance as to who can be appointed a child’s guardian, but there is no automatic/default person or persons who will be appointed. A Designation of Guardian for a Minor can accomplish the parents’ goal of having a person appointed of their choosing. A competent probate attorney can assist in the drafting of this and related documents.
Guardianship Of Incapacitated Adults
With the progress of science and health care comes the reality that people are living longer. But many are falling victim to diseases such as Alzheimer’s, Parkinson’s, Huntington’s and other neurodegenerative diseases. Also, an adult with autism may need the assistance of a Guardian. A growing number of adults in Texas are becoming incapacitated prior to their deaths, and the need to appoint guardians for our parents and aging friends will continue to increase over the coming years.
Many of us are also faced with the need to take care of a child suffering from autism, mental retardation, down syndrome or other developmental disabilities, who is soon to become an adult. Once an adult, the parents no longer have the ability to contract, admit the child to a health facility, or collect nominal government benefits without first being appointed guardian over the child’s person. Typically young adults in this situation don’t require a guardian of their estate, but if he/she receives government benefits, possesses, inherits or somehow obtains substantial assets, then a guardianship of the person’s estate will need to be obtained.
In short, guardianships are complex.
Guardians are generally responsible to the protected person for:
- Deciding where the protected person lives
- Making sure the protected person’s basic needs are met, including food, clothing and comfort
- Making decisions about the protected person’s health care, rehabilitation and treatment
- Maintaining the protected person’s property and personal possessions with reasonable care
- Making some financial decisions for the protected person, if he or she doesn’t have a conservator
- Advocating for the protected person’s rights
When a family member or close friend depends on you for care, start the guardianship application process as soon as possible. I represent and guide you through the process with legal support and also with caring guidance and compassion. I also offer guidance if questions arise during your service as a guardian.
Contact Us In Amarillo
The attorneys in our guardianship law practice include Hollye Hawkins, a partner of the firm. To schedule a consultation with her or another appropriate lawyer, please call 806-705-7546 or send an email inquiry.