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Overview of Texas Guardianships

Posted by Chris Peterson | Jun 12, 2012 | 0 Comments

Overview of Texas Guardianships

Appointment of a guardian is a drastic, but sometimes necessary step when a person cannot care for himself or herself or manage his or her finances and property. The goal of a guardianship is to protect the vulnerable person from exploitation, abuse, and neglect (including self-neglect), while preserving the person's independence to the greatest extent possible.

If you are concerned about a loved one's ability to care for himself or herself, consult an experienced Bryan guardianship attorney to discuss a guardianship and other possible solutions. Because a guardianship takes away a person's rights and is expensive and time-consuming, you will want to be fully advised about all alternatives before initiating a guardianship.

A Bryan guardianship attorney can also assist you with planning for your own incapacity so that you can name your own guardian or make arrangements that may avoid the need for one should you become unable to care for yourself or manage your affairs.

What is a guardian?

A guardian is a person or entity who is appointed by the court to protect the person or the property or both of an incapacitated individual who is known as a ward.

Ward must be incapacitated

A guardian is appointed for someone who is found by a court to be incapacitated. An individual is incapacitated if he or she is a minor or suffers from a mental or physical condition that affects the individual's ability to care for himself or herself. A minor is anyone under the age of 18 who has not been married or emancipated. An adult is incapacitated if, because of a mental or physical condition, the individual is unable to fulfill basic needs (i.e., food, shelter, and clothing), care for his or her health, or manage his or her financial affairs. An adult may also be incapacitated if he or she needs a guardian to receive funds from governmental sources.

Two types of guardians

Texas guardianship law recognizes two types of guardians: a guardian of the person and a guardian of the estate. A guardian of the person is responsible for the ward's physical care and well being. A guardian of the estate is responsible for the ward's property. Depending on his or her needs, a ward may have one or the other or both types of guardians. One person may serve both as a guardian of the estate and a guardian of the person.

A court may give a guardian full authority or may restrict the guardian's authority to specific decisions depending on how much assistance the ward requires.

Unless restricted by the court, a guardian of the person can choose the ward's place of residency. The guardian of the person has a duty to provide the ward with food, clothing, shelter, and medical care. The guardian also has the authority to approve medical treatments and care on behalf of the ward. However, a guardian cannot force a ward to submit to an in-patient psychiatric care facility.

The guardian of the estate is responsible for managing the ward's finances and paying the ward's bills using the ward's financial resources. The guardian of estate must file an inventory of the ward's assets with the court and complete an annual accounting for the court, describing all activity that occurred in the ward's financial accounts. In addition, at the end of the guardianship, the guardian must submit a final account. Depending on the guardian's financial sophistication, the assistance of a Texas guardianship attorney may be necessary to complete these tasks.

A guardian is a fiduciary, meaning the guardian owes the ward the highest standard of care recognized by law, and must act in the best interests of the ward at all times. The court may require the guardian to post a bond that will be available to the ward if the guardian fails to fulfill his or her her duties.

For help with guardianships and other matters related to incapacity

The experienced Bryan-College Station guardianship lawyers at the Peterson Group can assist you with all aspects of Texas guardianships including guardianship applications, contesting the appointment of a guardian, breach of fiduciary duty claims against guardians, and defense of guardians accused of misappropriation of funds. We can also advise you on guardianship alternatives and assist with planning for incapacity. Call us at 979-703-7014 to arrange a consultation.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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