What is Texas Guardianship?
Adult Texas guardianship is established by the Texas probate court to allow care and assistance to persons who do not have the capacity to care for their personal needs or financial matters. The courts may appoint a guardian for an incapacitated person because that person is unable to make decisions to protect their physical welfare or financial assets. Since guardianship is a serious matter, the Texas Estates Code is specific on the determination of incapacity.
An adult guardianship can be a full guardianship or a partial guardianship. Guardianship proceedings include both the guardianship of a person (personal protection and care) and the guardianship of the estate (financial protection and care).
Who Needs a Texas Guardianship?
There are multiple reasons a person might require a Texas guardianship. In our office we see different situations and life-altering events where a person now must have a guardian.
- An elderly person (parent or other loved one) becomes unable to care for himself or care for herself. This is often an issue with dementia or Alzheimer’s.
- An adult is in an accident and suffers a debilitating brain injury. Vehicular accidents with head injuries are the most common.A child with an intellectual disability is about to turn 18 in Texas. In this case, there are laws and rules prohibiting educators and doctors from providing information regarding an adult. Even if the adult has an intellectual disability. Although professionals may wish to cooperate with parents, is isn’t always possible.
- A child with an intellectual disability is about to turn 18 in Texas. In this case, there are laws and rules prohibiting educators and doctors from providing information regarding an adult. Even if the adult has an intellectual disability. Although professionals may wish to cooperate with parents, is isn’t always possible.
- An adult suffers a non-dementia type illness rendering them incapacitated. Usually this is a stroke or other illness which affects brain function.
- An adult who has caregiver(s) who can no longer legally attend to his/her financial or medical needs. This sometimes happens when there is a need for a new doctor or specialist. Unlike the family doctor, the new doctor may be unwilling to provide information. This is a real problem for caregivers and for the doctors. The doctor can only talk to the individual who does not have the capacity to make a decision. This can also happen with banks and financial companies. The teller talked to you for years, but now the bank changed ownership.
Texas takes individual rights seriously and, as such, the courts do not grant a guardianship if there are other, less restrictive, alternatives available. Following are some things to consider as guardianship alternatives.
Supported Decision Making Agreement. This allows an adult with disability to enter into an agreement with other adults (usually family members or friends) allowing them to provide advice about life decisions to the intellectually disabled person. This piece of the “supports and services” the courts want to consider is often suggested for those with special needs or intellectual disability. If the person does not have capacity to enter this agreement, it is not a viable alternative.
Representative Payee. Generally for government benefits, this allows a person to serve as the representative payee for payment of funds to the intellectually disabled person.
Estate Planning. If an adult has capacity to do so, he/she can execute a Statutory Durable Power of Attorney (authorizing a person to make financial decisions); a Medical Power of Attorney (authorizing a person to make medical decisions); and an Advanced Directive or Living Will (stating your wishes concerning treatment such as life support). The powers of attorney can be effective immediately or only upon your incapacity. With these documents in place you should not need a guardianship. You can also sign a Declaration of Guardian which allows you to tell the courts ahead of time who you would like to serve as your guardian if the need should ever arise; you can also say who you do not want to be your guardian. Estate planning while you are able is perhaps the most effective way to avoid guardianship.
Special Needs Trust. Talk to your estate planning attorney about making provisions in your estate plan for any beneficiaries who are or may need a special needs trust.
Joint Bank Account. If the bank will allow it, the intellectually disabled individual can have a joint account with another person to help manage money without a guardianship of the estate. In addition, aging parents or those who may at some point face incapacity can add another person to their bank or other accounts.
How to Get a Texas Guardianship
Finally, if none of the alternatives to guardianship are an option and if you are unable to take care of your incapacitated family member of loved one, hire a qualified Texas guardianship attorney. At the Bob Leonard Law Group, we will help you through the guardianship process. A past President of Guardianship Services in Fort Worth, Bob Leonard has the knowledge you need. Call our office today.