Guardianship is a legal term used to describe an individual who is allowed to make decisions for another person. The term guardian can include being the guardian of the estate of the incapacitated person, or it can mean being the guardian of the person of an incapacitated person. Texas law describes an incapacitated person as someone “who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, care for the person’s physical health, or manage the person’s own financial affairs.”
The Conservatorship
The first type of guardianship is guardianship over an estate, or another term for this is “conservator.” Guardianship of an estate is the setup of an individual that will manage a child’s income, money, and other property if inherited when a parent or person of custody becomes incapacitated or dies. This guardian of the estate will manage until the child turns 18. This person can pay bills, invest money, sign contracts, and apply for benefits on behalf of the ward. They also have the right to file a lawsuit on behalf of the ward and buy or sell property.
Guardian of a Person
The second type of guardianship is that of a person. There are several different types of guardianships of a person. First is the guardianship of a disabled individual. To qualify in Texas, they must be referred to the Texas Health and Human Services Commission (HHSC). They must either qualify as disabled, be 65 or older, a victim of abuse, neglect, or exploitation. As of 2015, legislators did pass a law recognizing supported decision-making which is an alternative to guardianship. Supported decision-making is for individuals that can make their own decisions and be responsible for their lives while still receiving assistance. This bill passed caused the establishment of some alternatives to guardianship. These new alternatives can be in addition to guardianship or can replace guardianship. Examples are power of attorney, creating trusts, money management, and more. The second type of guardianship of an individual is the guardianship of a minor. Guardianship is an individual providing evidence to the court that they can provide care, financially sustain a life, and have the ward’s best interest in mind. When the court grants legal guardianship of a minor, this means that someone other than the biological parent is responsible. However, this does not necessarily mean that the biological parent’s child custody is revoked; it only means that the parent is absent or unfit to put the child’s needs first. They still will have parental rights unless it is an extreme case, then the judge will revoke custody. When guardianship is granted, you become the care provider for that individual; however, guardians have limited responsibilities. They have more day-to-day duties with care and welfare than if they had legal custody, including the minor’s educational decisions and financial and medical needs. Many pick a guardian during the estate planning process. If something happens to either biological parent, the judge will ultimately decide what is best for the child.
Contact a Lawyer Today
If you are looking for a guardian for your family or your estate, you should reach out to an estate planning lawyer in Arlington, TX from Brandy Austin Law, PLLC today. He or she can look into your affairs and help you set up a good estate plan today.
