The Texas Young Lawyers Association has resources for legal information to the general public. The following excerpt answers questions about Texas guardianship.
What is a guardianship?
A guardianship is a court-supervised administrator designated for an incapacitated
person. There are two types of guardianships: 1) of the person; and 2) of the
estate. Legally speaking, the incapacitated person is often referred to as the “ward.”
A guardian of the person is in charge of the ward’s care and custody. A guardian of
the estate is also in charge of the ward’s property and finances, if there is any money
or property in the ward’s name.
Because a guardianship is a court-supervised proceeding, there are specific rules
regarding all areas of guardianship, and it is highly encouraged that you speak with
a lawyer about the requirements and specifications of appointing a guardian for
your child or yourself should you become incapacitated.
What does a guardian do?
In general, a guardian has wide authority over the care, control and protection
of the ward, but that right of control is not unlimited under the law. The guardian’s
duties may be restricted by a court.
The guardian is entitled to establish the ward’s domicile, to care for, control and
protect the ward, to provide the ward with clothing, food, medical care and shelter,
and to consent to medical, psychiatric and surgical treatment on behalf of the ward.
How do I create a guardianship in case I become incapacitated?
• If you appoint an eligible guardian by a written declaration, the written
declaration MUST be signed by you. Also, the declaration should be dated. If
the declaration is handwritten, then it must be entirely in your handwriting.
A declaration that is not written wholly in your handwriting may be signed
by another person for you under your direction and in your presence; or
• If the declaration is not handwritten, then you will need to have it witnessed
in your presence by at least 2 credible witnesses 14 years of age or older who
are not named as a guardian or alternate guardian.
• The declaration and any self-proving affidavit may be filed with the court at any time after the appointment of a guardian is filed and before a guardian is appointed.
• If the designated guardian does not qualify, is dead, refuses to serve, resigns, dies after being appointed guardian, or is otherwise unavailable to serve as guardian, the court shall appoint the next eligible designated alternate guardian named in the declaration. If the guardian and all alternate guardians do not qualify, the court shall appoint another person to server.
Note: When creating a declaration of guardianship for yourself, you can designate the people that you do NOT want to become your guardian. These designated people will be disqualified from being your guardian in the event that your pre-selected guardian is unable to serve as your guardian.
(the above information is from the TYLA publication, “Dealing with Dementia”).
Kalish Law Office- The Woodlands, Texas 281-363-3700
Estate planning, Elder law, guardianships