In Texas, a person can be appointed as a guardian under two circumstances. The first circumstance is if a minor loses a parent. When both parents are deceased or even when one parent is deceased, you can file for guardianship over minor children. A guardian will have guardianship of the minor until they turn 18. The second circumstance, which we see more in our office, is when someone is incapacitated. When an individual cannot take care of themselves and make decisions, they need someone to help take care of them. Most of the time, they cannot do normal daily living activities. They are unable to handle their finances, make medical decisions, dispense medications, and they may make bad purchases. In other words, they cannot live on their own.
Usually, with a minor, when a parent is lost, if there is another parent in place, that parent takes over as the natural guardian of the child. However, that parent is not the natural guardian of the child’s estate. If a child inherits money because he or she lost a parent, then a guardian of the child’s estate must be appointed. In such cases, we frequently recommend a management trust to avoid annual accountings, which is less than the cost of a guardianship.
When an incapacitated person is involved, a guardian must be appointed if there is not a properly executed power of attorney in place. If the incapacitated person does not have family or family that sees them regularly, there is potentially no one to make every day medical decisions or handle their finances. If no one is in place to ensure that the bills are getting paid, they are getting medications, and being taken care of, it puts that incapacitated person at risk for harm.
In Texas, a person becomes a guardian in probate court. Other states use the term conservator, which you may be familiar with from Britney Spears’ conservatorship dispute. In Texas a conservator is someone, usually a parent, that is appointed in family court. If you lost one parent, you may have the option of going to either court, but if both parents are deceased, then you will be going to probate court for guardianship.
A child does not need both a guardian and a conservator because they are basically the same thing under two separate areas of law. Having said that, a person could be the conservator of a child, like a parent, but that person may also be the guardian of the estate of the child. Sometimes, a person may serve in both roles, but most of the time, the roles are separate.
In family court, a conservatorship cannot be transferred because once the child turns 18 they are considered an adult. If the individual is a disabled child that cannot take care of himself or herself, and they fall under the criteria to have a guardian appointed, then the guardianship would start from the time the child turns 18 and continue throughout adulthood. Family court takes care of minor children, and when the child becomes 18, they then switch to probate court under the guardianship at that time.
A guardian is required to make sure that the child or adult has all the things they need to live. For instance: a clean home, food, medicine, and clothing, as well as making sure that there is someone to stay with them if they cannot live on their own. If an older person needs a guardianship, the guardian is required to see the ward a minimum of once every 30 days. The guardian could be responsible for handling finances every year, which would require them to do an annual accounting and filing this with the probate court. If they are not handling finances every year, they must do an annual report for the court that gives very detailed information about the ward. The guardian is required to inform the court on the ward’s health, their living arrangement, and how they are doing overall. The judges read this report, sign an order approving the report, and allows the guardian to obtain their letters of guardianship for another year.
For more information on being appointed a guardian in Texas, scheduling a strategy session is your next best step. Get the information and legal answers you are seeking by calling us today to ensure your loved one is taken care of.
Kimberly Hegwood is the Managing Attorney of Your Legacy Legal Care, a Houston estate planning law firm. With more than 25 years of experience practicing law in Texas, she represents clients in a wide range of legal matters, including elder law, asset protection, estate planning, Medicaid crisis planning, probate, guardianship, and other estate planning practice areas.
Kimberly received her Juris Doctor from the South Texas College of Law and is a member of the State Bar of Texas.
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