We’ve all seen those tragic turned inspirational movies where parents die and leave behind an orphan – insert just about any Disney movie. Sometimes it’s a more thought-provoking flick where an adult has lost their ability to care for themselves. Either way, this is a tale as old as time, yet so little is known about guardianship.
A “guardian” is someone who is chosen or appointed to make legal decisions for another person who is unable to make those decisions on their own. Guardianship can be over a child or an individual who has become incapacitated through age or disability.
Different Types of Guardianships
Many people assume that a guardian is someone who simply cares for someone who is unable to care for themselves. That is not the case. There are actually two types of guardians and guardianships. We commonly think of a guardian as someone who is appointed to care for the well-being of an individual; guardian of the person. There may also be a guardian of the estate, who is appointed to manage that individual’s property. The incapacitated individual is referred to as the ward by the courts.
Guardian of the Person
A guardian of the person is authorized to make decisions involving the life and person of the ward, including health care decisions and place of residence. This guardian is tasked to oversee the ward’s personal care, medical care, maintenance and support. As stated above, guardianship can be over a child or an individual who has become incapacitated through age or disability. But what does that mean, specifically?
Incapacitated by Age
A person under the age of 18 is a minor. By law minors are unable to make legal decisions for themselves and require an adult to do so. They are considered incapacitated by age.
Guardianship Considerations for Parents
Determining who to name as your child’s guardian is an enormous decision that is not to be taken lightly. Take the time now to determine who is the right fit for you and most importantly, your child. Then take steps to make it official with a Will or Appointment of Guardian for a Child. It is important to choose someone who shares parenting philosophies, spiritual values and someone who can offer a supportive and stable transition during what is obviously a traumatic time for them. You will want to have in-depth, deep conversations with the potential guardian in regards to your child. You may want to take the additional step of putting your wishes in writing. By leaving this letter to the guardian, they are not straining to remember previous conversations and you can easily update the letter as your child grows and changes. That will put then in the best position to step into your shoes if anything was to happen. It’s not okay but necessary to reassess too. The person that was the right guardian when your child was a toddler may not be the right person 10 years down the line.
Incapacitated by Disability
An adult may need a guardian if they are incapacitated by disability. Meaning they cannot fundamentally care for themselves. If an adult is substantially unable to provide food, clothing and shelter, care for their own physical health and manage his or her own financial affairs they are considered an incapacitated person. The adult may be suffering from a physical or even mental condition preventing them from properly caring for themselves and their estate. In the state of Texas, an incapacitated person also includes someone who must have a guardian appointed to receive funds from a governmental source.
Getting a Guardian Appointed
If you are concerned for the well-being of an adult who you feel is incapacitated and in need of a guardian, the process can be very difficult to prove. The state requires clear and convincing evidence to enact a judgement naming an adult incapacitated. In fact, a certificate from a doctor who has examined the ward is required. Texas courts have a mandate to seek the least restrictive alternative when considering the issue of guardianship. This both restricts the amount of rights removed from the ward and the solutions adopted to provide for the Ward. There are some situations that allow for the required care without appointing a Guardian. This is a complex area of law and many counties will not allow you to proceed unless you are represented by an attorney. Furthermore, Texas requires attorneys practicing in this area to attend specific continuing education on these issues. Guardianship of a minor is typically easier to achieve since you don’t have to go to great lengths to prove they are incapacitated.
Guardian Selection
Once a court has determined a guardian is needed, the statutes determine in what order people may be considered for appointment. If the ward is a minor, the order of priority is: parents, the person (s) designated by the last surviving parent, grandparents, next of kin and finally, a non-relative. While with a minor it is no surprise that family is first in line, that is not always the case for adults. If the ward is an adult, the following persons have priority in the following order: the person designated by the ward prior to his or her incapacity in a properly executed designation of guardian; in some cases, the person designated by the last surviving parent of the ward in a properly executed designation of guardian; the ward’s spouse; next of kin; and lastly, a non-relative.
The priority list isn’t as simple as it sounds. It’s not as easy as running down a list. There are often other considerations. Sometimes the court skips over a person with priority because they are ineligible.. A person can be ineligible because they are incapacitated themselves, notoriously bad, a minor, a person with a conflict of interest with the ward, or even someone with a lack of education or experience. If more than one individual holds the same level of priority and wants to seek guardianship, the court determines who is best qualified. In rare cases the courts appoint co-guardians but it is not unusual for one person to be appointed Guardian of the Person and another Guardian of the Estate.
My Guardianship Wishes
For reasons listed above, it is clearly important to designate your guardian sooner than later so you can ensure you or your children do not end up in the wrong hands. By preparing a Declaration of Guardian in Advance of need, you can name who you wish to be your guardian and can name those who should never be your guardian. This is critical if those you wish to be your guardian are not blood relatives or a spouse. Have a contingency plan in place if you and your spouse choose each other and one or the other doesn’t survive or is unable to be the guardian. If you choose one child over another, have that conversation in advance. You don’t want your children having to go through a court battle during this emotional time. Instead they should be pulling to together and relying on each other
Responsibilities of Guardian of the Person
The responsibilities are unique to each ward and their situation. The courts will always allow a person to maintain as much control over their life as possible. A Guardian of the Person may be determining where the Ward lives, what medical treatment they receive, who can see or visit or any other or anything related to their physical being.
Guardian of the Estate
A guardian of the estate is someone who attends to the ward’s financial affairs. They can be the same or different from the guardian of the person. Their duty is to manage, protect, preserve and dispose of the ward’s estate in the ward’s best interests, in accordance with the law. The guardian is responsible to use the estate assets to provide for the care and maintenance of the ward. Generally, the guardian is granted the authority to make decisions on the ward’s property and estate as if it was their own. Decisions made by the guardian of the person that involve expenditures are subject to approval by the guardian of the estate in some cases. Which effectively gives the guardian of the estate the ability to exercise ultimate control. The court is responsible for settling conflicts between the two. Ultimately, the court will side with whatever is in the ward’s best interests.
Guardianship Application
When a family member, friend or interested party files an Application for Appointment of Permanent Guardian, it is usually done in the county where the proposed ward lives. As previously stated, the applicant will need to provide documentation of a thorough medical examination. In Texas, the exam must have been performed within the last four months of the application and by a physician or a psychologist licensed in this state or certified by the Texas Department of Mental Health and Mental Retardation (unless the court states otherwise). The application usually contains the following information:
- The name, sex, date of birth, and address of the proposed ward
- The name, relationship and address of the person the applicant desires to have appointed as guardian, and
- The social security number of the proposed ward and of the person the applicant desires to have appointed as guardian if required by that court
- Whether guardianship of the person or estate, or both, is sought
- The nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitations of rights requested to be included in the court’s order of appointment
- The facts requiring that a guardian be appointed and the interest of the applicant in the appointment
- The nature and description of any kind of guardianship existing for the proposed ward in Texas or in any other state
- The name and address of any person or institution having the care and custody of the proposed ward
- The approximate value and description of the proposed ward’s estate, including any compensation, pension, insurance or allowance to which the proposed ward may be entitled
- The requested term (one year or continuing) of the guardianship, if known
- The name and address of any person holding a power of attorney, if known, and a description of the type of power of attorney
- If the proposed ward is a minor:
- Whether the minor was the subject of a legal conservatorship proceeding within the preceding two-year period, and if so, where and what was the disposition; and
- The names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased
- If the proposed ward is 60 years of age or older, the names and addresses, to the best of applicant’s knowledge, of the proposed ward’s spouse, siblings, and children; or if there is no spouse, sibling or child, the names and addresses of the proposed ward’s next of kin
- Facts showing that the court has venue over proceeding; and
- If applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of the Texas probate code.
After the application is filed it must be served in person on the proposed ward.
What if You Have No One to Name as a Guardian
A Guardians is not necessarily an individual person. It can be a non-profit agency or even a public or private corporation. If a suitable guardian is not found, the courts can appoint a public guardian, which is a publicly financed agency that serves the purpose of one. The court takes this selection just as seriously as if it were a single person. They first consider who plays a significant role in the ward’s life.
Why Legal Representation is Important
There is no telling what the future holds, so establishing guardians for you and your children is not something to be put off. Consult an attorney and get started on the legal documents that put your own wishes into place. Verbal discussions amongst family and friends is not enough to protect you and your loved ones from an unexpected outcome.
If you are considering becoming a guardian, it is equally important to consult an attorney. The process is tedious and can be very expensive. It is wise to consult an attorney before going down the road of becoming a guardian, as there may be better alternatives out there for everyone involved.
Debbie Cunningham is an Irving attorney providing affordable estate planning and probate legal services to the Dallas/ Fort-Worth areas. She understands the steps you should take to protect you and your loved ones. Debbie is family-focused and wants to ensure her clients are fully informed on the options that are available for their family. Debbie’s own blended family has given her valuable insights into the complexities of family dynamics.
Debbie was recently selected as “Best Attorney in Las Colinas & Coppell” for 2015 by Living Magazine. Each year, the magazine asks its readers to vote in over 100 categories for the companies they consider the best.
Law Offices of Debbie J. Cunningham
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