If you have been appointed to be the guardian of a person or the guardian of the estate during probate, you may have questions about what your new role entails. You may be unsure of your ability to carry out your new responsibilities and are looking for guidance on how to be a proactive guardian. Or you simply may be curious to learn more about this aspect of probate law. Regardless of the reasoning, we have answered several common questions about probate and guardianship for your convenience.
What is a Guardianship?
During probate, guardianships are often appointed for those who are unable to handle their newly received assets properly, such as a minor or an individual who is otherwise incapacitated and cannot handle managing an estate.
From the Texas Estates Code:
“A court may appoint a guardian with either full or limited authority over an incapacitated person as indicated by the incapacitated person’s actual mental or physical limitations and only as necessary to promote and protect the well-being of the incapacitated person.”
A guardian refers to the individual placed in charge of those deemed incapable of responsibly taking care of the estate and assets entrusted to them.
Who Needs a Guardian in Texas?
There are multiple reasons why a person may be assigned a guardian during Texas probate. The most common is that a person is assigned a guardian because of some form of incapacity to handle the assets of the estate, or due to physical or mental disability. An individual may be assigned to be the guardian of the person, a guardian of the estate, or both, depending on the circumstances of a particular probate case.
Minor guardianships are court-supervised procedures that permit an individual such as a grandparent or other concerned individual to become a child’s guardian. The court may appoint a guardian for a person under the age of eighteen years, who is need of an adult, other than the parents, to make legal decisions for the care of a minor. Applicants must be screened for suitability, but once established, the guardianship ends only upon the child reaching eighteen years of age, or if the court determines that the need for guardianship has ended.
An adult person, who is eighteen years of age or older, who cannot make decisions about his/her legal rights due to illness, a mental condition, or injury, is referred to by the law as an “incompetent” person. For example, an elderly person who suffers from dementia may be determined to be an incompetent person who is in need of a guardian. A person who sustained severe injuries in an accident and is unable to manage his/her affairs for a time may also need a guardian.
In the case of emergency, guardianships may be assigned temporarily for a period of 72 hours.
What are the Responsibilities of a Guardian in Texas?
A guardian in Texas must meet all legal responsibilities established by the court. Guardians are held to high standards of behavior when it comes to the duty of care they have for their wards. A guardian’s responsibilities can include:
- Posting a bond in an amount set by the court and taking an oath to assure that he or she will fulfill their duties and responsibilities. The bond is an insurance policy that protects the assets of the ward should the guardian’s actions to create financial loss to the estate.
- Managing estate assets in their ward’s best interests.
- Providing for their ward’s needs (clothing, food, shelter, education, medical care, etc.) to the extent allowed by the ward’s funds and resources.
- Filing an annual account, detailing the estate’s receipts and disbursements during the year.
- Filing an inventory of the ward’s assets.
- Asking the court’s permission and approval for some actions taken on behalf of the ward.
What are Some of the Alternatives to Guardianship?
Texas law offers many alternatives to guardianship. These include:
- Execution of a medical power of attorney under Chapter 166, Health and Safety Code.
- Appointment of an attorney in fact or agent under a durable power of attorney.
- Execution of a declaration for mental health treatment under Chapter 137, Civil Practice and Remedies Code.
- Appointment of a representative payee to manage public benefits.
- Establishment of a joint bank account.
- Creation of a management trust under Chapter 1301.
- Creation of a special needs trust.
- Designation of a guardian before the need arises under Subchapter E, Chapter 1104.
- Establishment of alternate forms of decision-making based on person-centered planning.
Contact an Experienced El Paso Probate Attorney
Guardianships can be expensive and require a probate attorney to work on behalf of the guardian to ensure that all fiduciary responsibilities are met and are performed in the best interest of their ward. At Forbes & Forbes, we have helped clients seeking to obtain guardianship over minors and incapacitated adults, and are more than happy to answer your questions about guardianships during the probate process.For more information about guardianships, contact us today to discuss the circumstances of your case with one of our experienced probate attorneys.