Everyone knows that medical advances over the past fifty years or so have resulted in a significant increase in life expectancy in the United States. According to the World Bank, World Development Indicators, the life expectancy for Americans has risen from 69.77 years in 1960 to 78.09 in 2009. This almost eight and a half year expectancy increase over the past fifty years contributes greatly to a number of challenges facing our aging population, including certain quality of life issues. One of these quality of life issues relates to the mental competency and physical ability of the elderly. Several within this aging population are finding themselves no longer able to provide food, clothing, or shelter for themselves or to care for their own physical health or manage their own financial affairs. Unfortunately, there are often disagreements between well-meaning (and sometimes not so well-meaning) interested persons concerning who is best suited to care for the person who is no longer able to care for him or herself.  In many instances, the legal solution in Texas is a court-ordered guardianship.

A guardian is an individual appointed by the Court to provide for and protect the interests of an incapacitated person. Under Texas law, there are two kinds of Guardians; Guardians of the Person and Guardians of the Estate. The Guardian of the Person is appointed by the Court to take physical possession of the incapacitated person (known as the “Ward”) and determine their domicile. The Guardian of the Person is also tasked with providing care, supervision, and protection for the Ward, which includes the provision of food, shelter, clothing, and medical care. Texas law requires the Guardian of the Person to provide an annual report to the Court concerning the condition of the Ward.

The second kind of guardian in Texas is the Guardian of the Estate. The Guardian of the Estate is charged with management and possession of the Ward’s property. Incumbent in those duties are the collection of debts, rentals, or claims that are due to the Ward and enforcing all obligations owed to the Ward. Occasionally, these duties require the Guardian of the Estate to bring or defend lawsuits on behalf of the Ward. The standard of care for a Guardian of the Estate is to safeguard the Ward’s assets as a prudent person would manage their own property. Similar to the duty of the Guardian of the Person, the Guardian of the Estate is required to provide an annual accounting to the court of all activities.

In Texas, the Guardian of the Person and the Guardian of the Estate is often the same person. There is no requirement, however, that this be the case. In its appointment of guardians, the Court always works to appoint the person or persons best suited to ensure the best interests of the Ward. While Texas courts are enabled to appoint one person as Guardian of the Person and another as Guardian of the Estate, there are no provisions in Texas law for co-guardians (where two people would share the duties of Guardian of the Estate, for example). The exception to this general rule is the situation where co-guardians validly appointed by a court in a sister state are granted authority to act on behalf of the Ward. There are also some situations that require only one of the two kinds of Guardians. Under certain circumstances, for instance, there is a need for a Guardian of the Person but no need for a Guardian of the Estate. Texas courts are charged with implementing the least restrictive measures in the creation of guardianships.

Courts consider a number of factors in their determination of the best interests of the Ward when appointing guardians. The Texas Guardianship Code (which is found in the Texas Probate Code) provides a statutory hierarchy of persons entitled to be appointed as guardians. The Guardianship Code also contains a list of disqualifying factors that prevent an otherwise eligible applicant from serving as Guardian.

The Texas practice of guardianship law requires an attorney who is well-versed in the relevant law and current trends. There are a number of ways in which a qualified attorney can assist the client in 1) successfully obtaining a guardianship on behalf of an applicant, if determined necessary; 2) ensuring on behalf of a proposed Ward that their wishes and desires concerning the appointment of a Guardian are honored and that the Ward retains as much personal freedom as possible, under the circumstances; or 3) that the Ward avoids the necessity of a costly guardianship in the first place, if possible. Future guardianship articles will address guardianships for the disabled and for minors and a more detailed overview of the guardianship process in Texas.

In the event that you or a loved one finds yourself facing the possible need for a guardianship in Texas, we encourage you to contact a qualified estate planning attorney for assistance.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.