Guardianship

Guardianship Issues Under Texas Law

Published on: August 15, 2024 | By David W. Miller

At McCulloch & Miller, we handle everything from estate planning to trust administration, from special needs planning to elder law. One area we are proud to specialize in is guardianship, which is the legal process that takes place when an individual can no longer make competent decisions independently. When a court decides that an individual needs a legal guardian, that guardian takes over the individual’s personal finances and affairs, serving in a comprehensive and holistic role. Guardianship is a complicated process, and today we review some basics to help you understand a few of the most common guardianship issues under Texas law.

Issue 1: Knowing When to Appoint a Guardian

It can be very murky for a court to decide when a person needs a guardian. In general, the court will require a thorough exam that draws a conclusion as to whether the individual has a medical condition prohibiting him or her from functioning at high mental capacity. The standard for guardianship appointment is generally high; courts do not want to appoint a guardian for someone that might not need one. For example, if a person makes decisions that are unsound or that his relatives disagree with, that does not necessarily mean the person needs a guardian. Instead, courts often appoint guardians when a person suffers from dementia or has fallen into a coma. It can sometimes be difficult to decipher when a guardian might be needed, especially because the process inherently means the person’s freedom will be extremely limited as a result.

Issue 2: Choosing a Guardian

Choosing a guardian can be tough. In many circumstances, courts prefer a family member; however, professional guardians can also be appointed. At McCulloch & Miller, we help draft what is called a “Declaration of Guardian,” which is a legal document that clients can put into their estate planning documents in preparation for the possibility of guardianship.

Guardianship FAQs

Published on: April 7, 2024 | By Thomas W. McCulloch

Sometimes, during an individual’s court proceedings, the court will decide that the litigant needs a guardian to look out for his or her best interest. When this happens, the court makes a finding on the record that the individual at issue is incapacitated, finds a guardian to care for that person, and appoints the guardian formally to establish the legal relationship between the two people. On today’s blog, we cover some frequently asked questions about guardianship in Texas, so you can be aware of what happens when a guardian is involved in state court proceedings.

What Kinds of Guardianship Does the Court Consider?

There are four main types of guardians that the court can appoint: the guardian of the person (full or limited); the guardian of the estate (full or limited); the guardian of the person and estate; and temporary guardianship. Each type is relatively self-explanatory – the guardian will either look out for the person’s personal care and treatment (in a complete or partial capacity) and/or the person’s financial matters (again, in a complete or partial capacity). For temporary guardianship, the court determines that there is an emergency situation necessitating a guardianship, which will remain in place until the court says otherwise.

When is a Litigant “Incapacitated?”

In Texas, the word “incapacitated” refers to either a person under the age of 18 or to, according to the statute, “an adult who, because of a physical or mental condition, is substantially unable to: (A) provide food, clothing, or shelter for himself or herself; (B) care for the person’s own physical health; or (C) manage the person’s own financial affairs.” Courts will not take this analysis lightly and will generally only consider guardianship when absolutely necessary.

What Are Conservatorships in Texas and Why You Should Avoid Them

Published on: September 20, 2022 | By Thomas W. McCulloch

Conservatorships have been thrust into the public spotlight in recent years because of one high-profile legal battle involving pop star Britney Spears. While many people may now understand the broad strokes of the legal mechanism because of this highly watched and followed case, it can be a complex tool best explained by a knowledgeable estate planning attorney. One thing the public understands well, though, is that conservatorships and guardianships can provide an easy route for fraud and abuse.

Conservatorship Basics

In Texas, a conservatorship is also called a guardianship. A court can appoint a conservator or guardian to make decisions on behalf of an individual. The person under guardianship is then deprived of making many everyday decisions on their own behalf.

To come under a conservatorship, a court must determine a person cannot make legal, financial, or medical decisions on their own behalf. This can encompass a wide range of possibilities, from mental health issues to dementia or intellectual or physical disabilities. Aging individuals can also come under conservatorship.

Does My Older Loved One in Texas Need a Guardian?

Published on: May 17, 2022 | By Thomas W. McCulloch

Parents take care of their children as they grow up and age. However, when these parents are getting older, children may get concerned about their parent’s health and well-being. In these cases, they may seek a guardian for their loved one, to take care of their personal and financial affairs. They, of course, want to take their parent’s wishes into account, but also may not want to leave them on their own anymore—especially if they are physically incapacitated or are in mental decline. Below is information about when Texans should seek guardianship for their aging parents, along with essential aspects of a guardianship.

What is a Guardianship?

Guardianship is obtaining the legal authority to make choices for another individual. A guardian is someone responsible for another person’s personal and financial affairs when they are no longer mentally capable of making these decisions for themselves. By law, individuals are assumed mentally capable of making their own decisions; because of this, people must go through a court process to declare someone incapacitated and appoint a guardian for them. A guardianship may be needed if the person cannot take care of themselves due to mental illness, disease, or mental incapacity.

Because guardianships can mean individuals do not have the ability to make decisions for themselves—including the ability to marry, vote, or even make certain medical decisions—courts will sometimes limit a guardian’s authority to the area they may need help with, like financial affairs.

Seeking Guardianship for a Texas Loved One

Published on: March 2, 2022 | By McCulloch & Miller, PLLC

This blog is for informational purposes only. McCulloch & Miller does NOT handle guardianship matters, we are a guardianship avoidance firm.

When most people think of guardians or guardianships, they think of children needing someone to protect them when their parents cannot. However, older adults may also require a guardian when they are incapable of managing their own affairs. Guardianships are not something to enter lightly, but they are critical in certain situations. Finding a guardian—and recognizing the responsibilities and duties of a guardian—may be a difficult endeavor, but it is important to know more about this process. Below is information on when to seek a guardianship, how this is incorporated into estate planning, and who to select as a guardian.

What is a Guardianship and How Do I Know if a Loved One Needs One?

Estate Planning in Texas: Lessons From the Free Britney Movement

Published on: October 12, 2021 | By McCulloch & Miller, PLLC

Last month, a judge delivered a ruling that thousands of fans and supporters of Britney Spears had been waiting for. Calling the situation of Spears’s conservatorship “toxic,” the judge decided that Spears’s father must no longer be her conservator. Under the conservatorship (guardianship)—which has been in place for over a decade—Spears’s father has maintained control over nearly every major decision in her life.

The unraveling of this conservatorship bears important lessons for estate planning in Texas. In particular, it demonstrates how early estate planning can help people maintain a sense of autonomy and empowerment even in the event of a court-mandated guardianship.

Just as Ms. Spears could not have predicted the mental health crisis that preceded her conservatorship, no one ever expects to become mentally or physically incapacitated. But estate planning can empower those who do experience the unexpected during the most difficult time in their life.

How Recent Concerns Surrounding Conservatorships Can Play into a Texas Estate Plan

Published on: July 29, 2021 | By McCulloch & Miller, PLLC

Once best known for her chart-topping hits, Britney Spears is now in the limelight for a much more somber reason.

For over a decade, Ms. Spears has been under a conservatorship following a decline in her mental health. That conservatorship has recently gained attention and notoriety as Ms. Spears and those around her allege that the arrangement has been abusive. The story of her conservatorship raises an alarming question: If a conservatorship could happen to a woman as powerful as Britney Spears, could it happen to you, too?

Fortunately, there are well-established ways to avoid a court-ordered conservatorship or guardianship in the event of incapacitation. Specifically, trusts and estates lawyers can help build a legal shield in the form of a revocable living trust.

Should You Name a Guardian for Your Child in Texas?

Published on: April 14, 2021 | By McCulloch & Miller, PLLC

For individuals with minor children, thinking about who would care for them if the parents died unexpectedly may be difficult but necessary. This designation can be made as part of a Houston estate plan, which appoints a person to serve as the legal guardian of a child—only in case of their parents’ untimely passing. Parents without a will should prioritize drafting one, as this documents the individual’s wishes and intents.

When deciding who to name as guardian—or whether to change the designation—there are several aspects to consider:

Factor #1: Location

What Should I Know about Guardianship?

Published on: April 18, 2020 | By McCulloch & Miller, PLLC

In a perfect world, a child would be raised by its parents. However, this isn’t always possible, and legally enforceable decisions must sometimes be made to name the person who is best positioned to look after a child.

Guardianship is generally only needed when a person is incapable—whether legally or practically—of looking after their own affairs, says VENTS Magazine in the article “Legal Guardianship 101: What You Need to Know.”

Courts have the power to appoint guardians for adults and children. This is usually a person who is unable to make decisions for themselves.

Guardianship Nightmares Surge in Unregulated Environment

Published on: April 4, 2018 | By McCulloch & Miller, PLLC

With a growing population of elderly, the lack of regulations and oversight has led to a disastrous situation for adults who lose civil liberties via guardianship proceedings.

A review by the Reading Eagle of court documents in three Pennsylvania counties show that when it is necessary for Adult Protective Services to intervene, agencies prefer having professional guardians rather than family members.

The story, “Finding solutions to Pennsylvania's troubled system of naming guardians,” reports that over the past two decades, filings statewide have risen 28%, faster than the increase of people 60 and older—the demographic most likely to be in a guardianship. In fact, the system in Pennsylvania already shows signs of strain: the Philadelphia Orphans Court is willing to retain a felon convicted of financial fraud as guardian to dozens of incapacitated adults, because of a shortage of professionals able to assume her caseload.