Texas Guardianship:​

Protecting Vulnerable Seniors and Transitioning Minors​

Every year, countless seniors with diminished capacity fall victim to financial exploitation.  As disabled minors reach adulthood, parents legally lose the authority to make decisions for them.  Elderly citizens and transitioning minors deserve protection.  Explore the pathways to protect their interests.

From Aging Parents to Disabled Minors: The Guardianship Solution in Texas​

Guardianship is a crucial legal process in Texas, designed to protect vulnerable individuals who may be unable to care for themselves or manage their affairs.  In some states, the term Conservatorship is used. Guardianship provides for the person’s physical care and management of his or her money while preserving, to the largest extent possible, that person’s independence and right to make decisions affecting his or her life.  The person who is the subject of a Guardianship is called the “ward”.  Guardianship removes certain rights and privileges from the “ward”.

Guardianship in Dallas-Fort Worth, Texas
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Reasons to Seek Guardianship​

Guardianships are created for a variety of different reasons. Guardianship is often be appropriate solution in cases involving: 

Depending on the circumstances necessitating a Guardianship, the decision to seek Guardianship can be emotionally distressing and difficult for the alleged incapacitated person and his or her family members. Our professional and empathetic approach ensures you have the information you need to make informed decisions.

Legal guardianship proceedings becomes necessary when an individual lacks the capacity to make decisions about their personal care and finances.

Types of Guardianships in Texas

There are two main types of Guardianship – Temporary and Permanent. A court may appoint a temporary guardian if presented with “substantial evidence” that an adult incapacitated person or minor requires the immediate appointment of a guardian. This type of guardianship is valid for a limited time.

The majority of guardianships are “permanent”. Permanent guardianships can be either total or partial. This means the guardianship will continue until it is terminated either by death of the ward or the restoration of the wards rights.

Types of Guardians

There are two types of guardians in Texas. Guardian of the Person, who is responsible for the ward’s well-being, and Guardian of the Estate, overseeing their finances. Often both a guardian of person and a guardian of estate are appointed and this can be the same person.

Guardian of the Estate

A guardian who possesses any or all powers and rights with regard to the property of the ward. Duties include the following:

Guardian of the Person​

A person who is responsible for and who advocates for the health, well-being and personal needs of the ward.  Duties include the following:

Guardianship Responsibilities​​

Guardians take on significant responsibilities, including managing finances, making medical decisions, and providing care.

Guardian Selection​

When it comes to guardian selection, the court considers the ward’s best interests. Typically prioritizing spouses and then next of kin. A spouse has priority over any other individual, including children. This can become an issue in blended families. It is a serious issue in cases where the marital relationship has been emotionally or physically abusive for the ward.

The court will give consideration to the ward’s preference and may appoint this person if he or she is not disqualified. It is important to note at this point, Texas residents may designate a guardian prior to incapacity using a pre-need designation of guardian. If there is familial discord or likely to be, this document should be used. In some cases a third party can be appointed by the court.

Less Restrictive Alternatives

Because the imposition of a guardianship has severe negative consequences for the ward, the court will explore less restrictive alternatives, like powers of attorney, medical directives, money management programs, management of community property by a competent spouse.

Avoiding Guardianship​

Proactive estate planning can help elderly individuals avoid the need for guardianship, ensuring their wishes are respected. Designating someone to manage your financial affairs in a Durable Power of attorney or designating someone to make your medical decisions for you in a Medical Power of Attorney will usually take care of the needs that an application for an appointment of a guardian typically addresses. It is important to understand that not all powers of attorney are created equal and consultation with an attorney that deals with guardianship issues regularly is strongly advised.

For minors, a Will or trust instrument can designate a particular person to serve as a guardian in case the testator dies or becomes incapacitated before the minor becomes an adult. It is not advisable to designate a guardian for minors in a Will. It is best to use a separate designation of guardian. A trust for a minor holding the assets intended for them avoids the need for a guardian to be appointed to manage funds left to them. Setting up a trust puts you in control, not the court, of naming who is going to manage the assets.

Expenses of Guardianship

Guardianship involves expenses such as filing fees, attorney costs, and medical examinations, which may be reimbursed from the ward’s estate. If a contested guardianship occurs, the costs will typically come out of the estate of the ward. There are situations in which others will become responsible for the cost of litigation.

In cases of a contested guardianship where no guardianship is created because the court finds the proposed ward has full capacity, the applicant may not be reimbursed by the proposed ward’s estate for funds spent on costs and attorney’s fees.

In cases where the proposed ward is indigent, some or most of the court expenses may be paid out of the funds of the county in which the alleged incapacitated person resides. The filing fees may vary from county to county, but in almost every case there will be charges associated with creating a guardianship.

Establishing a guardianship can be expensive, and the costs of administering a guardianship of the estate can easily exceed the annual income of the estate. For this reason, it is usually a good idea to see if there are any alternatives to a guardianship before starting down the guardianship path.

Guardianship Process

Understanding the guardianship process is crucial for families facing this decision. It involves court appointments, assessments, and legal proceedings. Applicants are required to retain an attorney in guardianship proceedings. An attorney will be appointed by the court to represent the ward and protect the ward’s rights.

Guardianship Requirements

Meeting the legal requirements for guardianship is a critical first step, ensuring the ward’s best interests are upheld. There are required reports that must be filed annually. The management of a ward’s assets may require the guardian of the estate to obtain court approval prior to taking action.

Consequences of Guardianship

Loss of Rights: Guardianship involves the ward losing their civil rights with the aim being to ensure their safety. Because of this severe result, guardianship should be sought as a last resort.
The ugly truth is that guardianships are situations in which a ward can be more easily exploited by the person serving as the guardian. This is why it is incumbent upon you to engage in comprehensive estate planning and do so on a regular basis. Establishing an ongoing relationship with an attorney puts you in a better position to ensure your wishes are known and executed when the time comes. 

Do not discount the less than harmonious relationships that exist between your children, your spouse and children, your siblings and spouse, or your siblings and children. If you have no close family members, it is that much more important for you to put a plan in place for your care should you ever end up in the position of needing a guardian. You must plan while you have capacity and do it regularly in cases where there is likely to be discord later. 

 
Guardianship is a significant legal process that should be approached with professionalism, empathy, and a deep understanding of its implications. We’re here to provide you with the information you need to make informed decisions for your loved ones. If you have any questions or need assistance with guardianship services, please reach out to us. Your family’s well-being is our priority.

Guardianship: Remedy or Enabler of Abuse​

No discussion about guardianship can be had without addressing the pitfalls for the ward of becoming subject to a guardianship.  Guardianship can be and often is the only and best solution for a senior that has lost mental capacity or a minor disabled child.  But, as helpful as guardianship can be, there is a dark underbelly.  It is fraught with danger for the ward.  The unfortunate fact is that when it comes to the exploitation of seniors and disabled adults, it is typically at the hands of family members.  The bad actor family members engage in acts of financial exploitation, abuse, mistreatment, and neglect.  Family members are not the sole perpetrators of these despicable acts against another human but paid caregivers and nursing homes are also common bad actors. 

The danger of a selfishly motivated family member or criminal third party gaining control of and access to a vulnerable senior is very real and can have devastating results.  A 1998 study showed that elders who suffer from abuse, neglect or exploitation are three times more likely to die than those who have not suffered from abuse, neglect or exploitation. Deepening the tragedy is the fact that this exploitation frequently originates from within the elder person’s inner circle – be it family members, close friends, or caregivers. Watch our video on choosing a fiduciary.

Financial abuse can take place even with the elder person’s apparent awareness and sometimes their consent, even if they remain mentally capable. This complexity often makes it challenging to identify or provide proof of such abuse. Moreover, many victims find themselves in a difficult position, reluctant or unable to point fingers at a friend or family member who might be behind the exploitation.

If you are a senior who has been diagnosed with an illness that will decrease your mental capacity over time, you must start planning now!  Your disease may progress faster than anticipated and you face the real possibility of waiting too long to start planning for yourself.  You are then in a position in which making those decisions for yourself is no longer an option. Don’t leave it up to the courts to decide who should be in charge of your care and finances. Let our firm help you put a plan in place while you still have decision-making capacity.

Please confirm that you understand the consultation is paid and the fee is $350.