When an individual becomes incapacitated by illness, dementia, age, or other condition, it is necessary to have a guardian act on their behalf to make decisions and manage that person’s estate. To find out how a guardianship will work in your situation or to explore other options, it is important to speak with a qualified Granbury attorney.
At The Law Firm of William A. Walsh, our team offers honest and accessible legal representation to Granbury and the surrounding areas. Our skilled attorney can provide comprehensive estate planning, probate resolution, and guardianship application assistance to individuals and families of loved ones who’ve become incapacitated. With a reputation for putting his clients first, William A. Walsh will use his legal skills to obtain the most favorable outcome in your case.
A guardianship is the legal arrangement in which a court appoints an individual to make decisions on behalf of another individual who is incapacitated, ill, or otherwise unable to manage their own affairs. In Texas, a guardianship specifically relates to care over an incapacitated adult, while conservatorship relates to care and custody over minor children.
The guardian is appointed for the express purpose of protecting the interests of their ward. There are two basic types of guardianship:
- Guardianship over a person. Guardians of a ward look after the well-being of their ward, making sure their physical and mental health is taken care of daily. This includes taking them to doctor’s appointments, getting medication, and ensuring their daily needs are met, as well as making decisions regarding their medical care, daily activities, and living arrangements.
- Guardianship over an estate. Guardians look after the financial matters and assets of their ward’s estate. This includes managing affairs, making financial decisions, and ensuring bills and taxes are paid as necessary.
In Texas, conservatorship is the term used for custody and specifically relates to the parents’ rights to care for a minor child. Guardianship is the term used when custody or care over an adult is concerned. Conservatorship cases fall under family law and go through district courts. Guardianship cases fall under probate law and go through a county court to be heard.
Guardianships occur when a court finds an individual to be legally incapacitated. The formal court process then begins with an application for guardianship. If found to be suitable, a hearing for the guardian will subsequently be held. Guardianships can be established for any length of time, either for a temporary guardianship or for a permanent or long-term guardianship.
To be clear, not all guardianship is bad. In fact, guardianship serves a necessary role in managing estates and caring for those who are incapacitated. Nevertheless, there are several factors that make guardianships a less-than-ideal fallback:
- Guardianships are expensive. The costs associated with establishing guardianship can grow quickly. In addition to hiring a guardianship attorney to represent you as the potential guardian, the court will appoint an attorney to represent the incapacitated individual. If family members don’t agree on who should serve different roles, there will be additional legal fees required for contested proceedings. Much, if not all, of the expenses will be paid by the ward’s estate.
- Guardianships are public. Guardianship proceedings are done in court, meaning that all estate information and affairs discussed in the case are available to the public. Alternatives to guardianship offer the opportunity to keep all information private.
- Guardianships are unclear. Who winds up with court-appointed guardianship and what powers over their ward or their ward’s estate is ultimately completely up to the court. This means that the end result may not be what the ward or their family wanted. If the family is contentious and the court does not otherwise find a suitable guardian in the family, it may appoint guardianship to a stranger.
Thankfully, there are much better alternatives to guardianship in most cases if you plan ahead.
With proper estate planning, an individual can establish one of several legal options that provide clear legal instructions for what should happen if they become incapacitated. With an estate planning attorney, you can establish:
- Power of attorney. This document grants legal authority to its agent to act on behalf of an individual in a wide range of possible capacities, each of which can be outlined when establishing the power of attorney. This can include financial matters, business dealings, and other personal and estate matters.Establishing a power of attorney can negate the need for guardianship, even in probate, as an agent will have already been established. A durable power of attorney goes into effect immediately upon signing, while a springing power of attorney can be set to go into effect if and only when the person becomes incapacitated.
- Medical power of attorney. This document grants legal authority to its agent to act on behalf of an individual’s medical welfare, making medical decisions on behalf of the principal. It has all the same legality as a standard power of attorney but is designated specifically to handle medical care.
- Revocable living trust. This document grants initial control over a trust to its creator and allows for a plan of succession to be established in the event the grantor becomes incapacitated. While this method requires careful attention to how the trust is set up in order to ensure all assets are included, this can be an extremely helpful way to avoid the need to put a guardian of the estate in place, as there will already be a designated trustee to handle estate affairs.
- Declaration of guardian. This document names the individual desired to be appointed as guardian in the event that one should become legally necessary. While this does not technically avoid guardianship, it keeps the legal decision of who should take on guardianship with the ward as it is made before incapacitation. Declaration of guardianship is ideally established as a backup should either the power of attorney or revocable living trust fail in its intended purpose.
Generally, by pursuing one of the many alternatives to guardianship, you will save costs, keep the proceedings from entering the public domain, and ensure that the wishes of the individual being cared for are preserved and respected. Nevertheless, there are many situations in which establishing guardianship will still be necessary.
Whether you are ready to properly plan your estate, need to establish a power of attorney, or are in the process of applying for a guardianship, William A. Walsh can help. To partner with a Granbury guardianship attorney today, contact our office at The Law Firm of William A. Walsh.
