We all have people who rely on us, but some individuals require additional attention, such as children or family members who require extra care due to old age and/or a mental or physical disability. An aspect of estate planning includes addressing the matter of guardianship, which outlines what you wish to happen to the people you look after, particularly who will be appointed as their guardian. A Cleburne guardianship attorney can assist you in determining guardianship.
At The Law Firm of William A. Walsh, I proudly serve clients in a variety of family law issues, including divorce, custody litigation, estate planning, and guardianship, along with many additional legal services. I am a qualified family lawyer who can give you legal advice on your guardianship case or other legal needs whenever you’re ready.
Guardianship refers to choosing a trusted person to care for and look after a loved one after your death to ensure their needs, such as medical care, housing, food, and emotional well-being, are met. The family member in need may refer to minor and/or disabled children or an adult who is incapacitated to some degree. For children, the guardian is referred to as a conservator, and the guardianship as a conservatorship.
Typically, guardianship can be determined during the drafting of a last will and testament or the general process of developing an estate plan. In the event something happens to you before you are able to name someone as your choice of guardian for your child or indisposed relative, the decision will be determined by the court.
Judicial proceedings regarding guardianship usually adhere to Texas law. This law outlines a preferential list of individuals qualified to serve as guardians in the following order: the person’s spouse, then family, and finally, any other individuals found to be suitable.
When applicable, an incapacitated adult may choose to sign a Designation of Guardian that expresses who they would like to serve as their guardian in the event they ever became indisposed. They can additionally specify who they expressly do not want to act as their guardian. This document isn’t enforceable or of higher authority than the court’s discretion, but it can be a strong indicator of who’s most suitable during considerations.
Guardianships for indisposed adults can either be the person responsible for the individual’s estate, the person who is the guardian of the specified individual, or someone who fulfills both roles.
An appointed Guardian of the Person is responsible for the overall well-being of and any personal matters regarding an incapacitated adult; this may include tending to their healthcare needs, ensuring they are properly clothed and fed, or making potential decisions about their continued education.
A Guardian of the Estate, which may be the same as the Guardian of the Person or a separate person, is specifically in charge of managing the dependent party’s finances and property. This is usually most relevant for elderly individuals. This guardianship has similar authority to a power of attorney.
It is possible to get a temporary guardianship, and it is necessary in a variety of situations, but it can be very difficult to acquire. It must be sufficiently proven to the court that the person in question or their property is in imminent danger, necessitating immediate protective action for a temporary guardianship to be granted. This will last only up to 60 days unless the need, or lack thereof, for permanent guardianship can be proved.
Guardians, aka conservators, of a child can either be joint managing, sole managing, or possessory conservators. Joint managing conservator refers to the instance of two people, often the child’s parents, who are given legal decision-making power for their child. Possessory conservators are responsible for properly caring for and supporting the child whenever they are in their custody.
A sole managing conservator is the person who was named as the only individual with legal authority over the child and over any important decisions regarding their well-being. This type of conservatorship may be necessary if the child’s parents aren’t involved, have exposed them to alcohol or drug abuse, or if there is a history of neglect or violence towards them.
If a child’s parents are not married and one parent, or someone else, is given sole conservatorship, the other parent has possessory conservatorship over the child. This allows them to have input when making major decisions regarding the child, in addition to being able to spend time with them, but all final choices are at the discretion of the sole conservator.
While many cases of guardianship in Cleburne are simple, sometimes the proceedings aren’t so straightforward. Normally, once a guardian is chosen, either by the court or according to the initial caretaker’s estate plan/written will, and subsequently approved, that individual must post a bond to the court. Additionally, they are required to provide an annual report concerning the status and care of the person in need that they attend to.
Sometimes, shortly after the guardian is approved, another interested party may argue against the need for guardianship or the person selected for the guardian role. A person contesting the guardianship may also claim that the circumstances call for a more appropriate and less restrictive means of conduct, such as instead opting for an eligible power of attorney.
It is also possible that the proposed incapacitated adult, apparently in need of a guardian, will contest the proceedings themselves, claiming that they are mentally competent and, thus, the guardianship is unnecessary. There are rare instances in which the disabled individual’s capacity is restored or regained, such as in situations of traumatic brain injury; under these circumstances, and when substantial evidence is provided, the guardianship can be terminated.
At The Law Firm of William A. Walsh, my clients can receive economical, earnest counsel and effective representation in their family law matters. I can ensure that you see a favorable outcome, no matter how complex your circumstances are. Schedule a consultation today.
