Life has its tragedies. Regardless of a person’s age, circumstances
may render an adult incapable of caring for themselves. When such a tragedy
occurs, it may be necessary to hand over the responsibility of this person’s
care to someone else. It may be time for them to have a guardian.
A guardian is an adult who has legal power over another adult. Courts have
the authority to give this power. The adult who is losing their independence
is called the “ward.”
Choosing to become a guardian is a very serious decision. It cannot be
Here are some things to consider before taking on guardianship of another adult:
- A full guardian is completely responsible for every aspect of the ward’s
life, as if the ward were a child. Depending on the situation, a guardian
could conceivably have to quit work and become a full-time caretaker.
- The ward now lives a restricted existence. If they are independent-minded,
this is going to cause distress.
- Becoming a guardian is costly and time consuming. The guardian must pay
for their right to be a guardian, which includes attorney’s fees,
and they need to stay faithful to their obligations. If they forget to
renew their paperwork annually; if they are negligent in their duties;
or if they make decisions against the court’s wishes; they lose
- Terminating guardianship is a big deal. It can’t be done with a simple
form. It requires going back to court – more time and more cost.
- Even though a guardian has decision-making power, big decisions still need
to be cleared through the courts, which takes more time and possibly more money.
When considering guardianship, the one and only question to answer is:
“Is this choice the best solution for everyone involved?”
Taking this step is going to dramatically change the lives of each person
affected by this decision. Guardians need to be steeled and ready to take
on this huge task.
Alternatives to Guardianship
Although a loved one clearly needs help, guardianship may not be the solution.
How else can they find assistance?
First, it may be possible to find trusted friends and family to help out.
Uncle Jim may be able to help make decisions, and Aunt Jeanne can help
manage the money. Never underestimate the blessing of a good network of
people who are willing to help.
When decision making becomes an issue, people can grant certain powers
to other adults. A living will gives instructions for what to do when
someone becomes incapacitated. Various powers of attorney give specific
legal representation to another person.
Day-to-day living can be covered with certain community programs. Someone
can get help with transportation, home-delivered meals, or disability services.
Parts of Texas have money management programs that can help. Perhaps joint
checking accounts are in order. Government benefits can be sent to a designated payee.
Hospice care is another valuable option for sick loved ones. There are
plenty of alternatives available when guardianship is not the best choice.
Types of Guardianship
Now that the decision has been made to become a guardian, it’s time
to look more closely into the types of guardians and their roles
Guardianship of the Person
A guardian of the person makes non-financial decisions for the ward. Guardians
of the person decide where the ward will live. They have the authority
to put the ward in a nursing home. Guardians may consent to medical treatment
for the ward. Travel plans are authorized by a guardian.
Guardians may file suit on behalf of a ward or manage other legal affairs.
The power to file for divorce on behalf of a ward is still unclear in
the state of Texas. A guardian may file for divorce at the request of
the ward. However, if the guardian believes that divorce is in the best
interest of the ward, things get murky. At present, Texas doesn’t
have many clear laws or precedents for this action. In 1998, there was
a case brought to court (Stubbs vs. Ortega) that got as close as any case
yet to granting a divorce. The case showed that there was sufficient evidence
to petition the court for a divorce, but not for the court to directly
grant said divorce. Also, there isn’t a clear standard for what
evidence would need to be presented to even make such a petition.
Full Guardianship of the Person
In a full guardianship arrangement, the ward loses most of their rights.
Almost every life decision needs to be regulated by the guardian. If the
ward is found malnourished or living in squalor, the guardian is held
Even so, guardians are not given absolute rule over the ward. Big decisions
still need to be cleared through the courts. It’s important to remember
that wards are considered “wards of the state.” They do not
“belong” to the guardian. The state appoints the guardian
to be its
representative, and it puts limits on the guardian’s powers and actions.
When trying to understand which powers a guardian has over a ward, a generally
good practice is to ask, “can the state make this decision?”
If the answer is “no,” then the guardian can’t either.
For example, guardians can’t make decisions regarding the ward’s
reproductive rights, nor could they do something odd like order cosmetic
surgery for the ward. They are there to look after the ward for the state,
not to control them.
Limited Guardianship of the Person
In less extreme cases, it may be wise to consider a limited guardianship.
Limited guardianship gives more freedom to the ward. These freedoms could
present themselves in the form of being free to marry or vote. A ward’s
freedoms and limitations are determined by the courts. There isn’t
a hard-and-fast standard for these limitations. Texas trusts its judges
to make rulings in the best interests of wards, so they have a lot of
leeway to make decisions that are just and fair.
Guardianship of the Estate
When a guardian is overseeing the estate of the ward, they are in charge
of the ward’s financial affairs. Estate guardianship is highly supervised.
An unscrupulous person could easily take advantage of a ward’s finances,
so it’s important that they are closely monitored.
Guardians of an estate may pay a ward’s bills and choose which ones
to pay based on their own financial needs. They can invest the ward’s
money and sign financial contracts on the ward’s behalf. Estate
guardians may apply for government benefits for the ward. A guardian can
file a lawsuit for a ward.
It is even possible for a guardian to contradict a ward’s original
last will and testament. If it is ruled that the ward is incapable of
making sound financial decisions, the guardian can buy or sell property
for the ward in direct contrast to the ward’s original wishes.
Like guardianship of the person, guardianship of the estate can be full
or limited. And, like all forms of guardianship, big decisions still need to be approved
by the court.
Guardianship of the Person
and the Estate
This is when everything is controlled by the guardian, financial or otherwise.
Just like other forms of guardianship, “person and estate”
can be limited by the courts.
Gaining guardianship takes time. The courts don’t make guardianship
decisions lightly, and the process is long and complicated. When there
is an immediate need, it’s quicker and easier to gain temporary
guardianship over a ward. Temporary guardianship lasts for 60 days. It’s
a good idea to file for temporary guardianship while waiting to be granted
full (or limited) guardianship.
Temporary guardianship is used when it looks like the potential ward is
going to be incapacitated. Also, when someone is in immediate danger and
guardianship is needed to protect them, courts will consider temporary
Guardianship is hard, but it can be rewarding. If it really is in everyone’s
best interest, guardianship can provide peace of mind, knowing that a
loved one is being looked after and cared for.
If it’s time to consider guardianship of another adult, we can help.
Consultations are free and there’s no risk involved, so call today
at (713) 936-2300 or contact us online.