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J.J., Sour Lake, Texas
A guardianship is a court-supervised arrangement whereby a guardian is appointed by a probate court to care for the person or property of a minor or incapacitated person.
A minor is a person less than eighteen (18) years of age who has never been married. An incapacitated person is an adult who, due to his or her mental or physical condition, is unable to provide himself or herself with food, clothing or shelter, care for his or her physical health and/or manage his or her financial affairs. A minor also is considered to be an incapacitated person. The minor or incapacitated person for whom a guardianship is established is known as a ward.
There are two types of guardianships–guardian of the person and guardian of the estate.
A guardian of the person is appointed to take care of the personal and physical needs of a ward. A guardian of the person takes physical custody and control of a ward and makes educational, residential, support and health care decisions for the ward.
A guardian of the estate is appointed to make the financial decisions pertaining to the preservation, protection and maintenance of a ward’s assets. Included in the appointment as guardian of the estate are the requirements to (i) post a bond in an amount set by the court to insure that the guardian fulfills his or her duties, and (ii) file an annual report with the court detailing the estate’s receipts, disbursements and other financial transactions.
Securing a guardianship can be difficult–especially since incapacity must be proven by clear and convincing evidence, which is a very high standard. Even if a guardianship application is granted, courts typically take away as few of a ward’s rights as possible, conferring on the guardian only those rights and powers necessary to protect the ward and/or the ward’s property.
Establishing and administering a guardianship also can be an expensive proposition–principally because of the necessity to involve lawyers. Because the guardianship application process is complicated, most courts will not consider applications filed by non-lawyers. In some situations, the proposed ward may fight the guardianship fearing a loss of his or her rights. In other situations, one faction of a family may fight another faction of the family for control over the guardianship process and the ward's assets. Each of these situations requires the retention of lawyers and escalating attorneys’ fees.
For these reasons, it is always a good idea to consider alternatives to a guardianship before commencing the application process. One alternative is a directive to physicians–also known as a “living will.” The purpose of a "living will" is to inform a person’s attending physician whether he or she desires life-sustaining procedures withheld or stopped, or specific medical procedures to be administered, if there is a terminal or irreversible medical condition.
Other alternatives to consider include (i) a designation of guardian in advance of need, which allows a person to select who his or her guardian may and may not be ahead of time in case he or she ever requires a guardian, (ii) a medical power of attorney, where a person designates another person to make health care decisions for the designating person before he or she becomes incompetent, (iii) a durable power of attorney, which enables a person to appoint someone else to make decisions and transact business for him or her, and (iv) a representative payee, a person to whom the Social Security Administration will send monthly Social Security and/or SSI checks for the benefit of another.
Protecting an incapicitated loved one–whether by establishing a guardianship or challenging an unscrupulous existing guardian–is important for the loved one’s physical and financial well being. If you need to secure a guardianship, contest an existing guardianship, contest a guardianship proceeding or bring legal claims against a dishonest guardian, call Sonya Coffman at The Coffman Law Firm. Because…family matters.
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We represent clients in Beaumont, Bridge City, Port Arthur, Orange, Port Neches, Groves, Houston, Nederland, Vidor, Mauriceville, Lumberton, Silsbee, Kountze, Liberty, Winnie, Anahuac, and throughout Southeast Texas, including Jefferson County, Orange County, Hardin County, Liberty County and Chambers County.