WHAT IS THE PURPOSE OF GUARDIANSHIP?

• The purpose of Guardianship is to promote and protect the well-being of an incapacitated person. This incapacitation may be physical incapacitation, mental incapacitation or merely the incapacitation of being a minor. Due to these variations in needs, the Court "custom tailors" each guardianship to fit the needs of the person so as to encourage the maximum self-reliance and independence of the incapacitated person.

THE TYPES OF GUARDIANSHIPS

• There are generally two types of guardianships. The first type is Guardian of the Person. In this respect the Guardian is responsible for the care and well-being of the Ward and must report on this each year to the Court. The second type is a Guardianship of the Estate. This involves the handling of funds belonging to the incapacitated person for whom an Annual Accounting is due to the Court on the income and expenses for the Ward in the preceding year. Many times a Guardian will be both a Guardian of the Person and a Guardian of the Estate. Either alone or together, the undertaking is an immense responsibility and is not to be taken lightly.

• Also, available in Texas is the Temporary Guardianship. This type of Guardianship allows critical action to be taken on the behalf of a proposed ward while all the required steps are being taken for a permanent guardianship to be established. This usually takes 1-2 hearings and costs a bit more but can have the guardianship in place within a day or two.

WHY DO I NEED TO GO THROUGH A GUARDIANSHIP?

• Older adults do not need a guardian simply by reason of age or minor mental or physical impairments, provided they are still able to manage their personal and financial affairs. The courts will not appoint a guardian merely because the family believes that the ward is making foolish or risky decisions. Courts will appoint a guardian if there is a physical or mental condition which impairs the decision-making capacity or their ability to avoid harm to themselves or to others.

• The Court determines exactly what kind of incapacitation there is and what benefit would the proposed ward receive from a guardianship. An incapacitated person may only be incapacitated in the sense that they need someone to handle their finances but otherwise can take care of themselves. In this instance the Court may decide that this person needs a Guardian of the Estate only. Or, if the person has no estate or the property can be managed without the requirements for a guardianship, but is physically unable to do certain things, the Court may decide that only a guardianship of the person is needed. As you can see, the Court will determine what is needed in the best interest of the proposed Ward.

WHERE DO I BEGIN?

• First, please realize that the process of creating a guardianship is a joint effort among the proposed guardian, the proposed ward whenever possible, the attorney ad litem who represents the proposed ward and your attorney and his support staff. You can expedite this process by making a list of the full names and addresses of all the people related to the proposed ward. Another way is to have a list of all major property holdings, including real estate, vehicles, investments, and bank accounts along with their approximate values. 

WHAT HAPPENS NEXT?

• This is not the end of the proceedings however. The next step in the procedure is to file an Application for Guardianship with the Court. When the proposed ward is an adult, a statement from the physician is often required. The Court will then appoint an Attorney Ad Litem to give independent advice to the proposed ward. After official notice has been given, a hearing will be held to determine the appropriateness of the guardian. Following that, an oath and a bond are required. Our next step would be to establish the Estate value for the Ward by sending bank verifications to the institutions which hold funds for the Ward, and collecting information on all other assets which are owned by the Ward, into a document called the Inventory, Appraisement and List of Claims. Once this is filed with the Court we need to determine if there are any unpaid debts which may include a legal notice being run in the newspaper, or letters written directly to the creditors.

• As you can see, there are many steps to be taken and a great deal of responsibility for the proposed Guardian. This decision, though often not of choice, should not be taken lightly.

PROTECTION AGAINST UNSCRUPULOUS GUARDIANS

• Guardians are required to act in your best interests, keep accurate records, and treat your property separately from their own. The courts can remove an agent or guardian who does not act in your best interests even after you are incapacitated.

AVOIDING A GUARDIANSHIP

• Guardianships of the estate are ordinarily not necessary for an incapacitated person who has appointed an agent under a durable power of attorney. We at Silverblatt Law Office would be happy to draft such a document prior to its need. A person can also designate who he or she wants (or does not want) to be his or her guardian of the person in case it should later be determined that one is required.

CONCLUSION

• You should plan ahead so that your needs and desires can be followed in the event of an incapacitating illness or injury. Our attorneys can explain the benefits of advance planning to avoid guardianship should you become incapable of taking care of your personal affairs. In the case where a guardianship can not be avoided, rest assured that we will handle your case with competence and caring.