Do I Need A Guardianship or A Power Of Attorney?

If your loved one is unable to care for herself because of a lifelong disability, or has progressive dementia that has left him unable to manage personal business the way he once did, you may get conflicting messages about how you should respond. Health care providers or banks may tell you to “get power of attorney” before they will help you.

Powers of attorney are an important part of any estate plan.They are very useful documents when people have the intellectual capacity to decide who should care for them when they are no longer able to care for themselves.  Unfortunately, by the time the bank or the doctor’s office tells you to get one, it’s usually because they don’t feel that your family member is capable of making that kind of decision.  What you need then is a guardianship, in which a court appoints you as the legal authority to care for the daily needs or assets of the person who can no longer do so independently.

There are two kinds of guardianship in Texas: guardianship of the person, and guardianship of the estate.  Becoming the guardian of someone’s person allows you to make decisions about their basic daily needs for food, shelter, and medical treatment, while becoming guardian of a person’s estate enables you to manage their finances for them.  These roles can be served by the same person or by different people, depending on the circumstances.  If your loved one needs a guardian and you are considering taking on that role, here is an overview of what you should expect.

Guardianship of the Person

Guardianship proceedings typically begin with an attorney filing an application for the appointment of guardian on behalf of the person who wants to become the guardian.  In Texas proceedings, the person subject to the guardianship is referred to as “ward.”  Certain relatives of the ward must be given notice of the application, such as parents, adult siblings or children, and the manager of the nursing or group home where the ward may reside.  Because of the serious nature of the proceedings, an attorney is appointed to represent the proposed ward.  The ward is also served with a copy of the application.

After these steps have been taken, the court will schedule a hearing on the application.  At the hearing, the applicant for guardianship will have to prove that the proposed ward lacks capacity to handle her own affairs and make the case for the specific kinds of power that should be taken from the ward and given to the guardian.  A physician must certify the need for the guardianship to the court.  In many cases the proposed ward’s regular doctor can provide the necessary certificate.  But if your loved one does not believe that he or she needs a guardian, you may need your lawyer’s help getting an order requiring him or her to submit to a mental status examination.

Guardianship of The Estate

When a person owns property (real estate or other assets) that they cannot manage alone, it may be necessary to appoint a guardian to manage their property for them.  This is called guardianship of the estate.  It can be created in conjunction with or independently from a guardianship of the person, and the procedure is essentially the same.

Once a guardian is appointed, she or he will have to prepare an inventory of all of the assets that belong to the ward.  From there, the guardian must manage the ward’s property in ways that are fiscally responsible. Certain transactions are automatically approved by law, but others require court approval.  Having experienced legal counsel is especially important in guardianship of the estate, because you need to know the extent of your duties and when you could be held liable for mistakes.

It’s essential to have knowledgeable legal counsel at a time like this to help you make the right decisions.  Our attorneys have handled every type of guardianship from a variety of perspectives, and can help you navigate this difficult time.  Call us today at (512) 201-4083 to schedule an appointment.