Arlington, TX Family Lawyer
As explained by a leading Arlington, TX family lawyer from Brandy Austin Law Firm, PLLC., Texas law describes someone is incapacitated 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 own physical health, or manage the person’s own financial affairs.” In the state of Texas according to Texas Estate code 1002.017, the term guardian means that a person can be appointed as a “guardian under Subchapter D, Chapter 1101” which means they have full responsibility for the ‘ward’, they could be a “successor guardian” or a “temporary guardian”.
Guardianship is a legal term that can be 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. The requirements to be a guardian are: must be 18 years old, be of sound mind, not a felon, live within the US or be a legal resident, and be able to prove to the court that you can financial take care of the child.
First type of guardianship is that of guardianship over an estate or another term is ‘conservator’. Guardianship of an estate is the set up of an individual that will manage a child’s income, money and other property if they are 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 also pay bills, invest money, sign contracts, apply for benefits, they also have the right to file a lawsuit on behalf of the ward, as well as bull or self property on behalf of the ward.
The second type of guardianship is that of a person. There are several different types of guardianships of a person that can be looked into. First is the guardianship of a disabled individual. To qualify in the state of 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. However, with guardianship of a disabled individual this could be the only option, but there are other options for those that qualify with being 65 or older these can be in addition to guardianship like power of attorney, creating trusts, money management etc.
As of 2015, legislators did pass a law recognizing supported decision making. This is another alternative to guardianship that says that an individual can make their own decisions and be responsible for their lives while still receiving assistance. This can establish limitations to the guardianship and places. This bill passed caused the establishment of some of the alternatives that were named above (i.e the power of attorney).
Second, looking at the guardianship of a minor. Guardianship is an individual providing evidence to the court that can provide care, financially sustain a life, and has the best interest in mind for the ward. When the court grants legal guardianship this means that someone other than the biological parent is responsible for the care of that minor.
However, this does not necessarily mean that the biological parent’s custody of the child is revoked; it only means that either the parent is absent or unfit to put the needs of the child 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 when it comes to bigger decisions. They have more day to day responsibilities with care and welfare where if they had legal custody concerning education, financial and medical needs for the minor. Many pick a guardian during the estate planning process in case something happens to either of the biological parents- the judge will make the ultimate decision on what is best for the child. In some scenarios older siblings will take legal guardianship over their younger sibling if their parents are unfit to take care of them.