What is Guardianship?

Guardianship is a legal process designed to protect vulnerable persons from abuse, neglect (including self-neglect), and exploitation. Guardianship provides for a person's care and management of his or her finances while allowing a person to still retain as much independence as possible along with the right to make decisions affecting his or her life.

Why create a Guardianship?

Guardianships are created for several different reasons: incapacitation due to disease; injury; or life-long developmental disability. Overall the decision to seek guardianship is difficult for the both alleged incapacitated person and his or her family members.

What is the standard used in determining incapacity requiring Guardianship?

The Texas Estates Code ยง1002.017 defines incapacitated as:

1. A minor

2. An adult who, because of a physical or mental condition, is substantially unable to:

  • Provide food, clothing, or shelter for himself or herself;
  • care for the person's own physical health;
  • or manage the person's own financial affairs; or

3. A person who must have a guardian appointed for the person to receive funds due the person from a governmental source.

Types of Guardianships

  • Guardian of person: This involves someone being court-appointed to handle the incapacitated person's physical well-being.
  • Guardian of Estate: This involves someone being court-appointed to care for the incapacitated person's property.

Generally, the same person is appointed as Guardian of person and Guardian of Estate.

As always, consulting with an estate planning attorney is a good idea to determine if seeking guardianship is the right decision.