Statistics tell us that one out of every three adults who makes it to the age of 65 will suffer from some type of dementia related disease or condition. If your parent, or other elderly family member, becomes one of these statistics you may find yourself in a difficult position. Stepping in and seeking legal control over your loved one may seem like you are taking away his or her independence; however, failing to step in could lead to tragedy. Knowing what a guardian or conservator in Texas can and cannot do is essential when deciding how to handle this situation should you find yourself in it at some point in time.
In many states, an individual may seek either guardianship or conservatorship over an adult if the individual appears to be incapacitated. Typically a guardian has control over the person, or ward, while a conservator has control over the estate, or finances of the ward. In Texas, however, a “conservatorship” is the term used to refer to custody of child. Instead of using the two separate terms when an adult ward is the subject of the petition, Texas allows you to petition to be a “guardian of the person” and/or a “guardian of the estate”.
A guardian of the person may have full powers or limited powers in Texas. If you are granted full powers of guardianship you may make decisions such as where the guardian will live, what doctor the ward will treat with, whether the guardian has contact with family and friends, and whether the ward is allowed to drive a car. Sometimes the Court only grants a limited guardianship. In that case, the Court will dictate in the order exactly what control and authority the guardian has over the ward.
A guardian of the estate in Texas may also be granted full or limited powers. If you have full powers you will be responsible for handling the ward’s property, bills, and finances. You will make decisions regarding investments, decide when to sell property and decide when and how to pay bills. You are not, however, personally responsible for debts of the ward. If you have a limited guardianship the Court will specify what your responsibilities are with regard to the ward’s estate.
You may also be appointed as both guardian of the person and the estate. Guardianship can be temporary or permanent in nature depending on the facts and circumstances presented to the court. To obtain guardianship over someone you must petition the appropriate court and notify the intended ward of the petition. Typically, the Court will order a hearing if the intended ward objects to the petition. Consult with your estate planning attorney if you believe a guardianship is necessary for a family member or loved one.
Stephen A. Mendel, Estate Planning Attorney
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