When an individual becomes incapacitated, either physically or mentally, and is unable to care for himself or herself and make significant decisions for one’s personal care or financial matters, a guardian may be appointed to provide care and make those decisions on that person’s behalf. Under Texas law, one may designate one’s preference for one’s own guardian, subject to the individual being qualified and appointed by the court, or the court may appoint one if none has been previously designated. The Estates Code sets out a prioritized list of persons who may be appointed, and what might both qualify an individual or disqualify an individual from serving as guardian.
Types of Guardians
There are two types of guardians who may be assigned to an incapacitated individual (referred to in the law as a ward). These are:
- Guardian of the person, who cares for their ward’s physical needs
- Guardian of the estate, who looks after their ward’s property
Sometimes, both are appointed to one individual, or an individual may have one or the other. In many cases, they are the same person—one guardian to look after their ward’s physical wellbeing as well as their estate.
When Guardianship Is Needed
Applicants only qualify to serve as a guardian if the proposed ward has been determined to be legally incapacitated. Under Texas law, this means that it must be proven with “clear and convincing evidence” that the individual is incapable of looking after his or her own physical health, providing his or her own food, shelter, etc., or managing his or her own finances.
In addition, it must also be proven that the appointment of a guardian would be in the individual’s best interest and that his/her rights would be protected by such.
If the above cannot be proven, then the application for guardianship will be dismissed by the court. On the other hand, if it’s found that the individual is only partially unable to care for him/herself, then the court may appoint a guardian with limited powers. Texas law also sets out alternatives to guardianship which should be considered as being less restrictive to the proposed ward than a full guardianship.
Choosing a Guardian
Once it’s established that the individual is indeed incapacitated, a guardian can be chosen, either the applicant who is asking the court to make such determination or some other person. The applicant may designate a guardian in advance through a document making such election, but that person still must be approved by the court. Otherwise, a guardian is chosen based on who is most qualified and who takes priority. The order of priority is as follows:
- Next of kin
It is important to make plans in advance for adult guardianship. To designate a guardian for yourself for the future, you will need the assistance of an experienced guardianship attorney. Attorney Mary Ann Beaty can assist you with this process.