What Becoming a Guardian Means in Texas

Becoming the legal guardian of an incapacitated adult when their biological parents or current guardian is unable to fill the role is an immense responsibility that can lead to tremendous rewards. While the guardianship process is legally complex, it can be well worth the effort, and the difference you make in your ward’s life can be profound.

If you have questions or concerns about guardianship, turn to an experienced Temple guardianship attorney for the help you need. A skilled attorney can provide clarity during this often stressful process.

What Is Guardianship in Temple, Texas?

When guardianship is established in Texas, a court-monitored relationship is created in which the guardian assumes the responsibility of making specific decisions on behalf of the other person—called the ward. If the ward is an adult, they must have a physical or mental condition that renders them legally incapacitated and substantially unable to do the following for themselves:

Provide for their own food, clothing, or shelter
Address their physical health or manage financial affairs (or both)

Guardianships in Texas fall into two categories: of the person or of the estate. Both types involve complex legal issues, so it's essential to consult a Temple guardianship lawyer to discuss your situation.

Guardianship of the Person

Guardianship of the person means the guardian has legal responsibility for making major decisions about the ward’s personal matters, such as housing, medical care, and education.

Guardianship of the Estate

Guardianship of the estate grants the guardian the authority to manage the ward’s assets and financial affairs.

The same person can be appointed guardian of both the person and the estate. When making guardianship decisions, the Texas court’s priority is the best interests of the ward.

Who Can Serve as a Guardian?

The Probate Code in Texas determines who is qualified to act as a guardian in the state. To begin, if the person in need of a guardian is married, their spouse is entitled to take on the role before anyone else will be considered. If the incapacitated person isn’t married or if their spouse declines the role or is unable to fill it, then the ward’s next of kin becomes eligible.

When more than one person meets the eligibility requirements, such as when there is more than one sibling of the ward who could take on the role, the court appoints the person who is better qualified.

Preference is always given to family members when it comes to assigning guardianship. Texas courts also take the ward’s personal preference into consideration, and if the proposed person isn’t disqualified by any applicable factors, they may be appointed.

However, when a ward has no family member who is capable of or willing to take on the guardianship role, the court must appoint a person or entity to assume the responsibility.

For example, the Texas Department of Protective and Regulatory Services may be appointed. It should be noted here that a brief statutory form is available for designating a guardian in the event one becomes incapacitated at some point in the future.

Want to know if you or a loved one qualifies to serve as a guardian? Speak with a Temple guardianship lawyer today.

Disqualifications from Guardianship

Certain individuals are disqualified from serving as guardians, including:

Minors
Individuals who are themselves incapacitated
Persons with notoriously bad conduct
Those in lawsuits involving the ward
Debtors to the ward
Those with conflicting legal claims
Persons lacking the education or experience to manage the estate
Anyone deemed unsuitable by the court

It’s also presumed that anyone who has been convicted of any of the following crimes doesn’t meet the best-interest standard for guardianship:

Any offense involving injury to a child, including incest, abandoning or endangering a child
Any sexual offense, including sexual assault and aggravated sexual assault

Disability Is Not the Same as Incapacity

A person who has a disability doesn’t necessarily need a guardian. In fact, most don’t. For a person with a disability to need a guardian, their disability must be incapacitating. To be legally incapacitated, the individual must be unable to adequately manage their own finances, their own health, or their own day-to-day life as a result of a physical or mental condition.

Further, one’s incapacity can be partial or total, and when it’s partial, the rights and responsibilities bestowed to the guardian will be limited to the ward’s unique needs.

If you're unsure whether a loved one’s condition qualifies as incapacity, schedule a consultation with our guardianship legal team in Temple.

Guardianship: A Last Resort

While minor children have a verifiable need for guardianship, the matter is often less clear for adults who are incapacitated. Assigning guardianship is generally the last resort for adults, which means that other, less intrusive legal actions may be a better approach.

Power of Attorney (POA)

A POA allows a trusted individual to make decisions about finances or healthcare. However, it must be established when the person is still capable of understanding the agreement.

Representative Payee

The Social Security Administration (SSA) allows a person’s benefits to be sent directly to their representative payee, regardless of whether the person to whom the benefits belong is incapacitated or not. No guardianship is necessary to implement this option, which is established when the recipient is considered unable to manage their own benefits effectively.

This generally means selecting a family member or someone close to the benefit recipient to act as the payee. This payee must apply through a local SSA field office prior to taking on the role, which generally involves being interviewed to ensure that they understand their responsibilities and confirm that they can act in the best interests of the beneficiary.

Surrogate Decision Maker

In some healthcare settings, a surrogate decision-maker can be appointed without establishing guardianship.

Public Services

Support services like meal delivery, transportation, and disability assistance can often help an individual maintain independence.

Public Benefits

A family member may act as an authorized representative to apply for benefits such as food stamps, Medicaid, or TANF.

Emergency Situations

In emergencies, family members may be permitted to make decisions without formal guardianship if the person is incapacitated.

Basic Pros and Cons Associated with Guardianship

Sometimes, guardianship is the clear choice, but it’s often not a matter of black and white. In fact, there are a wide range of pros and cons associated with guardianship, including all the following:

While guardianship can help protect those who are vulnerable from others who may try to abuse, neglect, or exploit them, it is the most restrictive legal action that can be taken.
While guardianship is a legal process that requires an attorney to represent the ward’s best interests and maximize their protections, it can also be time-consuming and costly.
While guardians support their wards by helping them address their personal or financial affairs, wards give up many of their basic rights.
While guardians make primary decisions regarding their wards’ lives, family members can be excluded from the process, and access to their loved ones could potentially be limited.
With guardianship, the protected person becomes a ward of the court, which means there is careful accounting that requires an attorney’s assistance involved. If the ward has sufficient funds, the legal fees and court costs can be paid by their estate, but if this isn’t the case, the guardian may need to pay or to explore other legal avenues.
The required letter of guardianship for the ward must be renewed annually, which affords the ward ongoing protections, but if it’s not renewed within the deadline set, the guardian may be removed by the court.
Changing guardianship requires a court order that is based on the best interests of the ward, which helps to secure their protections. When a change is needed, it requires considerable legal effort that includes the professional services of a trusted guardianship lawyer.

Important Points to Make about Guardianship in Texas

Guardianship is not all-encompassing. Instead, guardians take on responsibilities like the following – depending on the circumstances involved – regarding their wards:

Paying their ward’s bills
Making primary decisions regarding their ward’s assets and maintaining these assets to the degree possible
Ensuring that their ward’s living and healthcare needs are met to the degree allowed by the ward’s resources
Filing annual reports regarding the ward with the court that appointed the guardianship
Seeking the court’s approval for many of the actions taken on behalf of the ward

Further, there are distinct limitations that are set for guardians, which include all the following:

A guardian can’t stop their ward from making bad decisions on their own behalf.
A guardian isn’t responsible for the consequences of their ward’s bad choices or decisions or for any illegal acts they may commit.
A guardian can’t resort to force in order to make their ward take the medications prescribed to them.
A guardian isn’t personally responsible for funding their ward’s living expenses or for covering their past debts
A guardian isn’t required to personally supervise their ward around the clock.
A guardian can’t commit their ward to a mental health facility.

Factors to Consider when Determining if Guardianship Is the Right Choice

The bottom line is that when an adult has a guardian, they give up a considerable amount of personal rights. This is why every guardianship determination must be addressed in terms of the best available choice, which means that all other available options must be carefully considered.

The least restrictive choice that’s going to work for the person in question is always the best option. Before moving forward with guardianship, you should take all the following into consideration:

Is the person in question unable to make reasonable decisions related to providing for themself?
Is it the least restrictive option available?
What resources are available to potentially support a less restrictive choice?
Is the person nonverbal, unable to effectively communicate with their caregivers by another means, and unable to make responsible decisions on their own behalf?
Could a surrogate decision-maker or agent assigned as power of attorney make the requisite decisions on the person’s behalf?

Speak with a Temple, TX Guardianship Lawyer Today

Brett Pritchard at the Law Office of Brett H. Pritchard has extensive experience helping families navigate guardianship. We are committed to supporting your loved one’s best interests.

I want to help you obtain the most favorable outcome possible in your case.