What is a guardianship, and how does it work? When a guardianship is established, an individual or entity is appointed to manage the personal or financial matters on behalf of another individual who doesn’t have the legal capacity to act independently. Guardianships are most often used to protect the interests of a minor child (whose parents are deceased or missing) or an adult who is mentally incapacitated (formally known as non compos mentis, or N.C.M.).
What types of guardianships are there? There are two types of guardianships in Texas:
1. Guardian of the estate — An individual or entity responsible for handling the financial interests of another person; 2. Guardian of the person — An individual who manages the personal interests of another person. The latter includes decisions regarding residential care and health care, education, and other personal matters.
How does the State of Texas define “incapacitated” in regard to guardianships? There must be a court order declaring an individual to be incapacitated (a person substantially unable to protect their own affairs). This most often refers to an adult who is incapable of managing his or her own affairs due to injury or illness, drug or alcohol abuse, mental illness or other reason. The Court must hear medical evidence to make a finding of incapacity.
What do I need to do to get a guardian appointed? Establishing a guardianship is a court proceeding. Except in the case of a minor, a medical evaluation is necessary, as well as a letter from the doctor treating the individual for whom a guardianship is sought.
Is setting up a guardianship expensive? Yes. On the front end, in the middle and at the end — think of a cash register ringing up the charges. The guardian must obtain court approval for spending amounts and allowances. Additionally, the guardian must account annually for financial decisions in a certain form that the court requires. An attorney is required to represent guardians of the estate, to file all of the necessary applications, which results in attorneys’ fees being paid out of the guardianship estate. The guardian is required to obtain a bond (insurance) and an annual premium payment must be paid from the guardianship funds. All of these components contribute to the expense of establishing and maintaining a guardianship
How can an attorney help with a guardianship? We explain your options and less intrusive (and less expensive!) alternatives. If needed, we will establish a guardianship and represent you if you are appointed as guardian of the estate. Our law firm has significant experience in guardianship legal matters. We know the court requirements, when to file, deadlines, and other important administrative matters. We can keep guardians on track to ensure compliance with all court requirements