Do you know who will care for you or your young children if something happens to you? It’s painful to think about these topics, but life is unpredictable, and you must prepare for the worst. By designating a guardian for your children or yourself as part of a larger estate plan, you can provide peace of mind for yourself and your family. Designating a guardian in advance is a complex legal process, and the guardian designation lawyers at Smith Family Law want to help. We have significant experience with guardianship cases and can handle all the legal work involved in designating a guardian. People throughout Texas know us for our commitment to our clients, and we can assist you with developing a comprehensive estate plan that includes appointed guardians for you or your children. Call (512) 714-2877 or reach out online for a complimentary consultation.
What Is a Guardianship?
In a nutshell, a guardian is someone the courts choose to manage the affairs of an incapacitated adult. The person the guardian looks after is called the ward, and guardians can serve different roles in meeting their ward’s needs. While some guardians manage nearly all aspects of their ward’s life and estate, others focus on specific areas. Every ward has different needs, and it’s up to the courts to find someone to help them with their particular situation.
What Is a Designation of Guardian?
A Designation of Guardian is a legal document that names someone to serve as the guardian for an incapacitated adult or child under 18. By choosing someone in advance instead of going through a lengthy court dispute, adults can make sure they or their children will have their needs taken care of by someone capable and trustworthy.
Who Needs a Designated Guardian?
Broadly speaking, guardianships are for adults who are mentally or physically incapacitated. Adults generally make their own decisions, but if someone cannot do so because of an injury, illness, or other impairment, the courts can appoint someone to manage their affairs.
Another group requiring guardians includes children with deceased parents or those whose parents can’t serve as guardians. (For example, the parents might have substance abuse issues or a history of domestic violence.) There are also times when these two groups overlap.
For example, when a child with an incapacitating injury or illness turns 18, they can theoretically make decisions for themselves. However, the child might still need supervision and care even after becoming a legal adult. In this situation, the child’s parents or another caregiver could seek to become their guardian, even though the child is legally old enough to manage their own life.
Different Types of Guardianships
Texas has two main kinds of guardianships, regardless of whether the ward is an adult or a child. The first is a Guardianship of the Person, which is when the ward cannot manage their own health and safety because of an incapacitating injury or illness. In this type of guardianship, the guardian decides on the ward’s daily life, medical care, and personal matters.
The second type of guardianship in Texas is called a Guardianship of the Estate. The courts can appoint a Guardian of the Estate if the ward cannot manage their own finances. In these cases, the guardian manages and protects the ward’s estate for the ward’s benefit. The last aspect of guardianship is crucial: guardians mustn’t use the ward’s assets for personal gain.
There are cases where someone serves as their ward’s Guardian of the Estate and Guardian of the Person. In Texas, you can also categorize guardianships by duration and the number of guardians for the ward. Using these criteria, there are three kinds of guardianships:
- Temporary Guardianship: The courts can appoint a temporary guardian when an individual is in immediate danger or at risk of losing a substantial amount of their estate. This type of guardianship protects the person or their estate during an emergency. Under Texas law, a temporary guardianship cannot last more than 60 days except in limited circumstances.
- Permanent Guardianship: When a ward is unlikely to regain their ability to manage their personal and financial affairs, the courts may appoint a permanent guardian. The guardian serves until the ward recovers or the courts intervene to end their responsibilities.
- Joint Guardianship: This type of guardianship involves two or more guardians sharing responsibility for the ward’s person or estate.
Finally, there are full guardianships and limited guardianships. In a full guardianship, the guardian has complete control over their ward’s estate, person, or both. In a limited guardianship, the guardian’s authority only extends to a specific area of their ward’s life. Generally speaking, the courts prefer limited guardianships to full guardianships so the ward has some control over their own affairs.
Can Wards Choose Their Guardians?
The Texas Estates Code says the courts must make a “reasonable effort” to consider an incapacitated person’s preference for their guardian. In fact, The law mandates courts to prioritize the incapacitated person’s guardian preference, even if it contrasts the designated choice.
Children can also express their wishes about who they want as their guardian in certain circumstances. Texas law allows children 12 and older to request a guardian, but courts ensure it’s in their best interest.
Common Guardianship Disputes
Given their complexity and emotional nature, guardianships frequently lead to disputes, even with prior guardian appointments. Some common guardianship disputes we see at our firm include:
- Determining Guardianship: Deciding who should serve as someone’s guardian can be contentious, even if someone selected the guardian in advance. Family members might dispute the best guardian choice, or someone might challenge the need for one.
- Abuse of Power: Guardians have a fiduciary duty to act in their ward’s best interests. If there’s suspicion that the guardian is mismanaging the ward’s finances or mistreating the ward, legal action might be necessary.
- Guardian Performance: Sometimes, a guardian might be unable or unwilling to perform their duties effectively. In these situations, it may be necessary to petition the court to remove the guardian and appoint a new one. This can be a complex process requiring the involvement of a guardian designation lawyer.
- Termination or Modification of Guardianship: If a ward’s condition improves, they may wish to terminate or modify the guardianship. Or, a family member might believe that the ward can now manage their own affairs. Either way, this process will likely involve legal proceedings.
- Disagreements Over Ward’s Care: The guardian might make decisions about the ward’s healthcare, living situation, or other major life issues that other interested parties disagree with. This can lead to disputes that require legal resolution.
- Estate Planning and Financial Decisions: Guardianship can significantly impact estate planning and financial decisions. Handling these matters incorrectly could lead to legal disputes.
How Our Austin Guardian Designation Lawyers Can Help
Designating someone as a guardian and handling the legal issues that come with it usually requires help from an experienced and knowledgeable guardian designation lawyer. Here are a few ways we can help you with designating a guardian and related issues as part of a broader estate plan:
- Advising on Legal Options: The lawyer can explain the various legal options for designating guardians for minors or incapacitated adults, including the implications of each choice. This can include advice on drafting documents like a will or power of attorney.
- Drafting Legal Documents: An attorney can help ensure that these documents are prepared correctly and in accordance with state law. They can draft a will designating a child’s guardian or create powers of attorney for potential incapacity.
- Providing Court Representation: If a dispute over guardianship arises, your lawyer can represent you in court. This covers cases challenging your chosen guardian’s validity or needing a court to establish guardianship.
- Ensuring Compliance: Texas estate planning and guardianship laws can be complex. An attorney can ensure your wishes comply with these laws and increase the likelihood of them being upheld if challenged.
- Mediating Disputes: In the event of a disagreement between family members or other interested parties, a guardian designation lawyer can help mediate and find a resolution that’s in the best interest of the person who needs the guardian.
- Providing Updates: Laws and personal circumstances can change. An experienced attorney can review and modify your estate documents, aligning them with current laws and your evolving circumstances.
- Planning for Special Needs: If you have a child or dependent with special needs, an estate planning attorney can advise you on setting up a special needs trust or other arrangements to ensure their long-term care.
You never know when something might happen to you, and a little preparation with the help of our team could save you and your family from legal headaches later. Call our Austin estate planning lawyers at Smith Family Law today at (512) 714-2877 or fill out our contact form for a complimentary consultation.