Oct 18
Navigating Guardianship: Roles, Responsibilities, and Key Decisions
Digest
Guardianship may still be required even with a power of attorney; the post contrasts guardian of the person with guardian of the estate and explains the option of management trusts for large estates. It underscores the guardian’s duty to make healthcare and financial decisions and encourages families to seek guidance.
Guardianship is a legal arrangement designed to protect individuals who are unable to make decisions for themselves due to incapacity. Texas defines incapacity as:
- a minor;
- 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; orc. manage the person’s own financial affairs; or
- a person who must have a guardian appointed for the person to receive funds due the person from a governmental source.
Understanding the nuances of guardianship can help families make informed decisions about care and management. Here’s what you need to know:
Who Can Be a Guardian?
A guardian is typically appointed by the court and can be:
- An Individual: Often a family member or trusted friend who understands the ward’s needs and interests.
- A Professional Guardian: An organization or individual specializing in guardianship services, equipped with the expertise to manage the responsibilities involved.
Courts prioritize appointing guardians who they believe can and will act in the best interest of the ward (the person under guardianship).
Understanding Guardianship Types: GOP vs. GOE
Guardianship can be categorized into different roles, each with distinct responsibilities:
- Guardian of the Person (GOP): This guardian focuses on daily living and personal needs, making decisions about healthcare, residence, and overall well-being.
- Guardian of the Estate (GOE): This guardian manages the financial affairs of the ward, including overseeing assets, paying bills, and making key financial decisions.
Another option is a Management Trust, which functions similarly to a guardian of the estate but specifically handles assets placed in a trust for the ward’s benefit, with less court oversight (which means lower costs). For estates over $500,000, choosing between a guardian of the estate and a management trust requires careful consideration of flexibility, oversight, and costs.
When is Guardianship Necessary?
Guardianship may be needed when a person is deemed incapacitated and cannot make decisions, even if they have a power of attorney in place. Unlike a power of attorney, which can be revoked at any time by the principal, guardianship is court-appointed and offers a higher level of oversight and protection—particularly important when POA disputes arise or when an agent is not acting in the principal’s best interests.
Key Decisions Made by a Guardian of the Person
A guardian of the person will most commonly make decisions regarding:
- Healthcare: This includes consenting to medical treatments and selecting healthcare providers.
- Residence: The guardian decides where the ward will live, considering the ward’s needs and preferences.
- Personal Affairs: This encompasses decisions about education, social activities, and general well-being.
What is an Annual Accounting?
An annual accounting is a comprehensive report prepared by the guardian of the estate, detailing all financial transactions and activities involving the ward’s assets. This document ensures transparency and accountability, providing a clear picture of how the ward’s finances are managed in compliance with court requirements.
Why It Matters
Navigating guardianship is essential for families who are making decisions about the care and management of incapacitated loved ones. If you’re considering guardianship or have questions about your responsibilities as a guardian, consulting with one of our experienced attorneys can provide clarity and guidance tailored to your situation.
We can help obtain guardianship for a loved one represent you as Guardian to answer any questions you may have, prepare motions for the court, and draft accountings. Contact us today at (512)374-4922 or email hello@hardiealcozer.com to discuss your guardianship needs and explore the legal avenues available to you.