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?
A guardianship is a legal process that is utilized when someone can no longer make safe or sound decisions for themselves. Unlike conservators, which are generally limited to financial matters, guardians are also responsible for an individual’s personal affairs. Because someone with a guardianship may no longer have the ability to make critical choices for themselves, like medical decisions or the ability to travel, most states do not allow guardianships to be entered into lightly.
Instead, an exam is generally required to see if the individual suffers from a medical condition that impairs their judgment. And a guardianship cannot be entered if a person makes—what can be deemed—poor choices but is mentally competent, like if they merely make poor financial decisions. In most cases, guardianships are entered when an older person has dementia or, for instance, if they are in a coma and have not signed any estate planning power of attorney or directives previously.
Who Should be Appointed Guardian?
Even in cases where the court has determined a guardian is needed, there is still a question of who should serve as the individual’s guardian. Courts typically prefer a family member serve as a guardian because they know the individual well and can often make choices knowing it is what the person would want if they could make the decision themselves. However, in some cases, a professional guardian can be appointed if no family member can do the job. McCulloch & Miller helps establish a Declaration of Guardian (Before the Need Arises) as part of our standard estate planning documents for this very reason.
Whoever is chosen, it is important to remember that a guardian’s job is to protect the loved one. Because of this, their responsibilities may include managing the person’s finances and sending reports on the person’s condition. Being a guardian is demanding and can be a lot of work—because of this, every effort should be made to avoid guardianship with pre-planning.
Entering into a guardianship is a long, complicated, and mostly, expensive process. Individuals should reach out to an experienced estate planning attorney to learn how to plan to avoid this dramatic legal process.
Contact a Texas Estate Planning Attorney
If you or a loved one is in need of a guardian right now, please contact a Houston guardianship lawyer. We can give you a referral.
We have decades of experience creating estate plans and advising clients on a variety of issues – including avoiding guardianship – and our attorneys are here to help you and your family. We understand that planning for the future can be stressful, but we will make sure to reduce this burden so you can feel confident no matter what comes ahead. To schedule a free, initial consultation with one of our attorneys, give us a call today at 713-333-8900.