We often hear about guardianships or conservatorships in the news (for example, Brittany Spears and Jay Leno’s wife). So what is a guardianship and how do I know if I need one?
What is a Guardianship?
A guardianship is a legal device that gives one person (the “Guardian”) control over the financial or personal affairs of another person (the “Ward”). In Texas, there are two basic types: Guardianship of the Person and Guardianship of the Estate.
A Guardian of the Person is responsible for managing the medical and personal needs of the Ward. For example, deciding where the Ward lives, ensuring proper medical care (doctor appointments, medicines, therapy, etc.). Each year, a Guardian of the Person must provide an account to the court about the Ward’s well-being for the guardianship to be renewed.
A Guardian of the Estate is responsible for managing the property and finances of the Ward. All property, including cash, real estate, and personal property must be accounted for. The court will set a bond to insure the property the Guardian is responsible for. The Guardian is given a monthly allowance to spend on the Ward’s behalf, and if they need to spend more, they must seek court approval for the overage. The Guardian must file an accounting with the court annually for the guardianship to be renewed.
How is Incapacity Determined?
In order to establish a guardianship, the person must be declared incapacitated. In Texas, adult incapacity is defined as “an adult who, because of a physical or mental condition, is substantially unable to (A) provide food, clothing, or shelter for himself or herself; (B) care for the person’s own physical health; or (C) manage the person’s own financial affairs.” Texas Estates Code § 1002.017(2). Ultimately, this determination is made by the person’s physician, whose opinion is submitted to the court using a Health Care Provider’s Certificate of Medical Examination.
When is a Guardianship Generally Needed?
Disabled Children Who Turn 18
- A child with mental disabilities or deficits may need a guardianship established so that a parent or caregiver can continue making decisions on his or her behalf after turning age 18. The application for guardianship can be filed up to 180 days before the child turns 18, but the guardianship will not begin until the child’s 18th birthday. If the child has little to no assets (under $20,000) and is unlikely to earn much income, a Guardianship of the Person is often all that is needed.
Older Adults Who Have Dementia or Other Form of Incapacity AND:
- Did not designate a power of attorney prior to their becoming incapacitated; OR
- Designated a power of attorney before becoming incapacitated but either later revoked it or there is a dispute as to who has the power to make decisions.
After a permanent Guardian is appointed, any power of attorney that was executed is considered void, and the Guardian now acts on the Ward’s behalf.
At TCV, we include incapacity planning as a standard part of our comprehensive estate planning process to avoid the need for guardianships. We also represent applicants who have special needs children who are turning 18. Whether you need help with your entire estate plan, planning for your special needs children, or just your incapacity planning, we look forward to meeting with you!
By Rachel Bosworth, Attorney, TCV