Guardianship: not one size fits all
A guardian can be needed for many different reasons. Often times, the first thing we think of when we hear the word guardian is when the parents of minor children have died and a guardian is needed to take care of the children.
Keep in mind, whenever the word guardian is used, it must be specified whether one is talking about a guardian of the estate, guardian of the person, or both. So what exactly does this mean? Let me take this moment to talk about what the word guardian means.
What is a Guardian?
During a guardianship proceeding, a guardian is appointed for someone who is declared legally incapacitated and who is not able to make decisions for themselves. Any child under the age of 18 is considered legally incapacitated, meaning they are a minor and cannot make medical decisions nor handle any finances for themselves.
Another reason for a guardian is if an adult (anyone 18 years of age or older) is not able to make their own medical decisions or handle their own finances. This can occur if an adult suffers from any brain injury, physical disability, mental disability, dementia, Alzheimer’s, etc. and is not able to make their own decisions. This can also occur if a child is born with down syndrome, autism or any other disability that inhibits them from being able to make their own decisions.
KEEP IN MIND THE FOLLOWING: Only a probate court, or a court that can handle probate matters, can legally declare someone incapacitated and appoint a guardian. Without this, a guardian does not exist or have any authority to act on behalf of anyone.
Guardian of the Person vs Guardian of the Estate
Now that you know what a guardian is and in what circumstances one can be appointed, always keep in mind that you must next determine if someone is the guardian of the person or guardian of the estate. Simply put, a guardian of the person is given the authority by the court to make medical decisions on behalf of an incapacitated person. They can also make decisions regarding where that person lives, as well as where they go to school. A guardian of the estate is given the authority, by the court, to handle all of the finances of the person. Understand that a guardian can only do those things a court has given them the authority to do.
The case of Bobbi Kristina is a very sad situation and difficult to watch. She is no longer able to make her own decisions as a result of her condition. Even though she is over the age of 18 and considered an adult, no one could act on her behalf without a court declaring her legally incapacitated and appointing a guardian for her.
It this particular situation, the court appointed her father, Bobby Brown, and Pat Houston, Whitney Houston’s Sister, as co-guardians. What this means is both Bobby and Pat must agree on all medical decisions they make on behalf of Bobbi Kristina. The Court has given them the authority and responsibility to make these decisions as co-guardians of the person of Bobbi Kristina.
The Court also appointed someone to take over responsibility of Bobbi Kristina’s assets. In Texas, we call this a guardian of the estate; this can also be called a conservator in other states. Regardless, Bobbi Kristina now has a court appointed individual to handle her finances and any assets she may have, or may be getting. This person now makes all decisions, with approval of the court, over the finances and assets, including the likeness, rights and legal claims of Bobbi Kristina.
As you can see there are many reasons one may need a guardian. If you are working with a guardian, it is not enough to just know that they are the guardian, but you also need to know the following:
- Are they guardian of the person?
- Are they guardian of the estate?
- Are they both guardian of the person AND estate?
- What authority has the court given them to act in this capacity?
If you are seeking a guardianship over a loved one, be educated as to the process and the various capacities one may serve in. It is always recommended if a guardianship is needed, speak with a qualified attorney who handles guardianship matters regularly and has a thorough understanding of the process. A guardianship attorney can discuss all of the options available to you in order to make the best decision for your loved one.
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