Guardianship is a legal process intended to safeguard people who are unable to care for themselves. Guardians, who are individuals or entities appointed by the court, may have broad or limited authority depending upon the mental and/or physical limitations of the incapacitated person (known as the “ward”). Incapacity is not determined by age but whether the individual is unable to provide for his/her basic needs such as food, clothing, or shelter, physical health, and financial affairs. Medical certification proving incapacity, along with other documents, must be presented to comply with the court’s specific requirements.
In Texas, if the guardianship has not been established by the ward prior to incapacity, the ward’s spouse, if qualified, may be entitled to be the guardian. Following are qualified and eligible next of kin. The court may appoint an objective party, guardianship program, or financial institution such as a bank if there are no relatives or friends of the incapacitated person willing and able to serve as a guardian. The individual’s preferences are taken into consideration, although courts will not appoint a guardian who has been convicted of certain criminal offenses, or who is otherwise deemed to be unsuitable.
Guardians are expected to act in the best interests of the incapacitated person. While guardianship removes certain rights and privileges from the ward, the intent is to preserve as much of the person’s independence and decision-making as possible. In Texas, the two types of guardianship are Guardian of the Person, whose responsibility is to take care of the ward’s physical well-being, and Guardian of Estate, who is appointed to manage a ward’s assets. Both types of guardians, may be appointed by the court and can be the same individual or entity.
Expenses involved with the guardianship process include filing and service of process fees, attorney fees, medical examination costs, and bond premiums. Possible alternatives to guardianship that may be less costly and do not involve the court system may include:
• Assigning Power of Attorney or Durable Power of Attorney. There are different types of Power of Attorney (POA) with different limitations. In general, Power of Attorney gives someone the right to act on the older person’s behalf, including paying bills, filing taxes, and making other financial and healthcare decisions.
• Directive to Physicians. Adults who are not mentally incapacitated can use this document to instruct physicians about their preferences regarding life-saving measures.
• Money management programs, including representative payeeship. Volunteer money management programs offer options for adults who need help managing their finances and paying bills. A person who receives Social Security or other government benefits may designate an individual or a qualified organization to manage this income.
• Management of community property. If not disqualified by the court, the spouse of a legally incapacitated person may have the authority to manage the community estate without the requirement of a guardianship appointment.
While guardianships can be costly and complex, sometimes it is the best option to protect a vulnerable individual.
At arrangeCARE we walk you step by step on how to deal with caregiver stress. If you would like to discuss your family’s needs under no pressure, please contact us at info@arrangeCARE.com or 512-814-3228 and we’ll be happy to help you.