Guardian of the Estate vs. Guardian of the Person

When people hear the word guardian, they may think of a person they would appoint to care for their children if they can no longer do so. However, an adult may also need a guardian under certain circumstances.

A judge establishes a guardianship in Texas, a relationship in which a legal guardian is named for someone who cannot care for themselves. The court must declare the individual legally incapacitated before appointing a guardian. A guardianship differs from custody in several ways. Rarely will a guardian be named for a child.

The Definition of an Incapacitated Person

An incapacitated person is someone who cannot provide for themselves, care for their physical health, or manage their finances. This person might be a child. However, in most cases, it is an adult who is elderly or developmentally disabled. Their physical or mental condition prevents them from handling these tasks on their own. A guardian might also be named for a person who receives funds from a government agency.

The person who cannot handle these tasks is declared a ward of the appointed guardian, and the guardian must be willing to accept the legal duties and responsibilities that come with this designation. However, it is important to recognize that a disability does not immediately make a person incapacitated. In addition, a person may be either partially or fully incapacitated.

Types of Guardianship

An individual may serve as a guardian of the ward’s person or of the ward’s estate. Some guardians take on both roles at the same time. Others may only serve in these roles temporarily until the court determines who should take on this role permanently, or until the ward’s condition improves. What duties come with serving as a guardian of the person or the estate?

Guardian of the Person

Unless limited by the court, a person who takes on the role of guardian of the person will typically determine where the ward lives and consent to medical treatment on behalf of the ward. They may place the ward in a nursing home, group home, or other similar living arrangement if they believe it is in the ward’s best interests.

The guardian determines if and when the ward can travel and whether the ward can file for divorce. When an individual is a guardian of the person, they oversee non-financial tasks. They handle all personal matters related to the ward’s housing, education, medical care and daily living needs.

The court may declare the individual seeking a guardianship of a ward as either a full or limited guardian. Full guardianship gives this individual the right to make all non-financial decisions for the ward, much as a parent does with a child. However, the court can legally limit what the guardian may do, and this individual has a legal duty to always put the ward's best interests first.

If the court grants a limited guardianship, the individual will have less authority over the ward. The ward will retain the right to make certain decisions on their own, which may include whether to get married or vote.

Guardian of the Estate

When a person is named guardian of the estate, they must handle the ward’s financial matters. The court closely supervises any individual assigned to this role, as there is a high risk of abuse of their powers. Oftentimes, the court must approve decisions made by the guardian in advance. Though the guardian will not be personally liable for the ward’s debts, the court may hold the guardian accountable if they mismanage the ward’s funds.

The guardian of the estate may pay bills on behalf of the ward, determining which bills to pay when there aren’t enough funds to cover all obligations. They might invest funds or apply for government benefits on behalf of the ward. The guardian can act as the ward’s representative when signing contracts or filing a lawsuit for their charge. They may also buy or sell the ward’s property.

As with guardianship of the person, guardianship of the estate may be limited or full. Limited guardianship means the ward can still make some decisions independently, leaving other financial matters for the guardian to handle. With full guardianship of a ward’s estate, the person taking on this role makes all financial decisions for the ward.

Guardian of the Person and Estate

One person might serve as both guardian of a ward’s person and estate, taking on both roles simultaneously. However, they may have full or limited guardianship, similar to guardians who are serving in only one of these positions.

Temporary Guardianship

The court may appoint a temporary guardian until it appoints a permanent replacement. This step is taken when an emergency arises, and an incapacitated person needs immediate help. Temporary guardians typically only serve for 60 days unless the time period is extended by the court. When that period ends, either a permanent guardian is appointed, or the guardianship expires by law.

Determining Who Will Serve in This Role

Texas courts prioritize family relationships when choosing a guardian for a minor ward. Parents are the first to be considered when naming a guardian. If they cannot do so, the person named as guardian by the last surviving parent in either a Last Will & Testament or a Declaration of Guardian document is considered. Next in line for consideration as guardian is the nearest living adult relative of the child. The last option for the court’s consideration is a non-relative.

If the ward is an adult, the person they named in either a Last Will & Testament or a Declaration of Guardian document before becoming incapacitated is given priority consideration to be guardian. If this individual cannot serve, the spouse is given next priority consideration for this role. If there is no spouse or the spouse cannot serve, the nearest living adult relatives of the ward are given priority. Only when a designated individual, a spouse, or a relative cannot act as guardian will the court turn to a non-relative and ask that they serve as the adult ward’s guardian.

Who Cannot Serve as a Guardian?

 A person must meet specific requirements before serving as a guardian in Texas. The individual must be 18 or older to be a guardian. They cannot be incapacitated or indebted to the ward. State law also says anyone involved in a legal dispute with a proposed ward cannot serve as this person’s guardian, and individuals who have committed certain crimes also cannot take on this responsibility. The court may also find a person to be unsuitable to serve as a guardian if there is any conflict of interest or other extenuating circumstances.

The Legal Responsibilities of a Guardian

Texas holds legal guardians to high standards. They have a duty of care for the ward. This individual must often post a bond, and must take an oath to fulfill their responsibilities. The bond protects the ward’s assets from financial losses caused by the guardian’s actions.

Once appointed as guardian, this individual must properly manage the ward’s estate assets and provide for their needs. When doing so, they must use the ward’s funds and resources, and they must be careful not to comingle the ward’s assets with their own. A guardian of a ward’s estate must file an annual account detailing all receipts and disbursements of the ward’s funds, and must file an inventory of the ward’s assets. In certain situations, the guardian must ask the court to approve their actions for the ward. A guardian of a ward’s person must file an annual report detailing the ward’s condition and well-being.

Designating a Guardian

A person may designate a guardian for themselves in a Last Will & Testament or in a Designation of Guardian in Advance of Need document. This designated individual steps in only if the person is later declared by a court to be incapacitated. Parents should also appoint a guardian for their minor children. Otherwise, the court will choose a guardian.

Alternatives to Guardianship

Texas offers alternatives to guardianship. A power of attorney is one way to avoid the need for a court to appoint a guardian. Individuals might also choose to establish trusts to administer their financial estates or handle their financial matters, and the Social Security Administration will allow another individual to accept government funds on behalf of a recipient as their representative payee. The same is true for a person receiving public benefits. In an emergency, a family member can often make decisions for a temporarily incapacitated person.

Becoming a Guardian

When an incapacitated individual needs a guardian, the person seeking to become their guardian must submit an Application for Guardianship to the court. This document is typically submitted to the court in the county where the incapacitated person lives. Documentation must accompany the Application that shows a medical doctor or psychologist has evaluated the individual and reached an opinion that the individual is incapacitated. This examination must have taken place within a specified time frame.

Most people looking to step in as a guardian work with an attorney to complete this process. Doing so helps ensure all steps are correctly completed to prevent delays. The potential ward must be personally served with notice of the guardianship case once the application and documentation have been submitted. Relatives and other interested parties must also receive notice that the guardianship application has been submitted.

The court will also appoint an attorney ad litem to represent the proposed ward named in the guardianship application. This attorney represents the ward in court, although the named person must often be present. During the court hearing for guardianship, the individual or their attorney may request a jury trial.

Before the court names a guardian, clear and convincing evidence must be presented that shows this individual is incapacitated and that it is in their best interests to have a guardian appointed. The applicant must also show the court that appointing a guardian will protect the rights and property of the ward.

Before taking this step, the court must determine whether the applicant filed the guardianship application in the correct jurisdiction. It must also ensure the person asking to be named guardian is qualified to take on this role, and that the proposed ward named in the application is totally or partially incapacitated and needs assistance managing their affairs. If the guardianship is granted, the court then determines whether it will be a full or limited guardianship and whether it applies to the ward’s person, the ward’s estate, or both.

If a person requests temporary or emergency guardianship, the process is similar. However, the hearing occurs within ten days of the application’s submission. At the hearing, the court either appoints a temporary guardian or dismisses the case. Emergency or temporary guardianships only last 60 days unless extended by the court, and usually by the end of this period the court determines whether a permanent guardian is needed. The temporary guardian must file a final account and an application to close the guardianship.

Serving as a guardian is not easy. Before taking on this role, a potential guardian must understand the duties and responsibilities that will be placed on them by the court. It is important to work with an attorney to handle the process correctly and to ensure the right person is appointed for this role. Those who do so will have peace of mind, knowing they made the right choice.

Disclaimer:

Ruelas Andino Law, PLLC makes no claims as to the accuracy of the information contained within the external links in this blog article nor does it endorse any of the businesses contained in the links. Information contained in this blog is for informational purposes only and may not be construed as legal advice.