Guardianships can be established to take care of minors as well as adults who suffer from physical or mental incapacities arising from injury, disease or old age.
Texas became the first state in the U.S. to recognize supported decision-making as a substitute for a legal guardianship when a new law passed by the state legislature went into effect Sept.1. Supported decision-making includes various procedures “to enable an adult,” as the new law states, “to make life decisions, including decisions related to where he/she wants to live, the services, supports and medical care the adult wants to receive, whom the adult wants to live with and where the adult wants to work, without impeding the self-determination of the adult.”
Also, for the first time, the law institutes a “Bill of Rights for Persons under Guardianship.” Included is the right of a ward to complain of, or raise concerns regarding, the guardian or guardianship to the court; to petition the court and retain counsel of his or her choice (though certification is required on the part of the lawyer); and to represent his or her interest in the guardianship.
A guardianship is a legal relationship, temporary or more or less permanent, established by a court, which appoints a guardian to take care of a person or his or her property (or both). The person under the guardian’s care and protection is called the ward.
There are two kinds of guardians. A guardian of the person takes care of personal decisions for the ward, such as decisions regarding medical care and where to live. A guardian of the estate is responsible for the property of the ward. A guardian also may handle both the person and estate.
Although the court has ultimate supervisory authority and can limit a guardian’s authority in its order of appointment, the guardian will make most decisions for the ward within the constraints of that order.
Generally, the guardian of an estate will manage the assets of the ward, their investment, the amount of income that should be distributed to the ward and the payment of bills.
A guardian of the person will make such decisions as where the ward should live or what medical care the ward should have. The guardian of the person also has the duty to make sure the ward has proper care.
Guardianships can be established to take care of minors as well as adults who suffer from physical or mental incapacities arising from injury, disease or old age. Guardians can be individuals, entities or even guardianship programs.
Currently in Texas, tens of thousands of adults, including the elderly and those with disabilities, have legal guardians who are authorized under the law to make decisions about that person or the person’s property.
Concern that guardianships were overused, expensive and cumbersome and could lead to the loss of a ward’s basic rights led to the new law. Courts now will be required to consider alternatives to guardianship and can only impose a guardianship if there is clear and convincing evidence of its need.
The new provisions also provide for alternative forms of decision making other than guardianship, which the court must consider.
If you or your loved one is subject to a guardianship, this might be a good time to review that guardianship.
Andrew Greenwell is a lawyer with a civil trial and appellate practice with a focus on commercial litigation. He was listed as a Super Lawyer in 2011-12 and 2014-15 and a Best Lawyer since 2005.
