There are different types of Guardianships for different situations. Having knowledge about the different types can help you make the right decisions for your loved one.
Guardianship of the Person and/or Estate:
When a Court finds an individual to be legally incapacitated, they must also find whether that legal incapacity exists as it relates to their person, or if it also encompasses their estate.
- A Guardian of the Person is responsible for the care and maintenance and personal needs of an incapacitated person.
- A Guardian of the Estate is responsible for all financial matters of an incapacitated person. This person is also in charge of preserving, protecting, and maintaining the assets of the estate.
Guardianship of a Minor Child:
A parent is always the natural guardian of the person of a minor. Therefore a guardian of the person of a minor is only necessary when the minor's parents are deceased or unable to care for the minor. It is important for parents to have a Declaration of Guardian included their estate plan becasue it names the individual who will be the guardian of the children in the event of their incapacity.
Also, a guardianship of a minor child becomes necessary if that minor child is entitled to receive any assets under a Last Will and Testament or if they were designated as a beneficiary on a life insurance policy or IRA, etc. In Texas, a guardian of the estate is necessary because a minor child cannot legally own any real property or be entitled to receive any assets.
Guardianship of an Adult:
A guardianship of an adult will become necessary if the adult is incapacitated and unable to provide for themselves or manage their financial assets. A guardianship of the person is also necessary when an individual attains the age of eighteen (18) and suffers from mental retardation.
Guardians for incapacitated adults will have the responsibility of making health care decisions and/or financial decisions. Generally, the guardian will be required to report to the Probate Court regularly.
Temporary Guardianship vs Permanent Guardianship:
In order to understand these two types of Guardianships, we must first ask ourselves if an immediate need exists. If an immediate need exists, a Temporary Guardianship is in order. However, if there is no immediate need, a Permanent Guardianship will be initiated. In order to determine which is needed, answer this question: can harm come to the person, or their estate as defined above, if a Guardian is not appointed immediately?
As you can see, the Guardianship process can be complicated and confusing to navigate.
Are You Concerned About The Financial Well-Being and Care Of A Loved One and would like to learn more about Guardianships?
If you have a family member or loved one that you want to ensure is taken care of you need to speak with an attorney experienced in the guardianship process. Contact us online or call our Dallas office directly at 214-559-7202.