Guardianship FAQs

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 Some Alternatives to Guardianship?

Notably, guardianship is restrictive; once the court appoints a guardian, that person has the ability to make decisions on behalf of the litigant. If the situation does not quite call for the restrictions of guardianship, there are a few alternatives to consider, including appointing power of attorney, establishing a special needs trust, or creating a joint bank account with a trusted family member. If you think one of your loved ones might need a guardian in the context of court proceedings, we encourage you to consider these alternatives before approaching the court about the issue.

How Do I Find Out if Guardianship is Right for Me or a Loved One?

If you are thinking about guardianship and wondering if it applies to a situation in your life, we recommend that you contact a Houston elder law attorney. While it is certainly worthwhile to read the relevant statutes and consider various options, speaking to an expert attorney can help you figure out if your specific circumstances warrant this kind of action.

Have You Found Your Houston Elder Law Attorney?

At McCulloch & Miller, we have over 35 years of experience providing legal services to Texans as they make their estate plans, navigate probate court, and think through issues pertaining to elder law. If you are looking for a Houston elder law attorney for you or a family member, give us a call today at 713-955-7281. If you prefer, you can also fill out our online form to have an attorney reach back out to you as soon as possible regarding your case.


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