San Antonio Guardianships Planning

It can be painful to watch an older person decline in their mental and physical capabilities and that pain can be heightened further when it’s someone close to us, like a parent. Amidst any possible emotional angst though, hard legal decisions have to be made. Who is going to watch out for the declining person? What will that responsibility entail? That’s where guardianships come in.

A San Antonio guardianships lawyer can help you understand the responsibilities that come with this role and how to obtain it on behalf of someone you love. Call the Law Office of Paul D. Hardy at (210) 405-1985 today.

A guardianship is the means by which a person is permitted to make decisions on behalf of another. It’s an extremely significant step. Guardianship means, in strictly legal terms, that some or all of a person’s civil rights are being assigned to someone else.

The gravity of declaring assigning a declining person (referred to as “the ward” in legal terminology) to a guardian is such that the state of Texas sees it as a last resort. Furthermore, Texas judges are instructed to allow self-reliance and independence to the maximum degree that is realistically possible given the specific circumstances of a case.

To that end, limited guardianships may be established, where a guardian will have legal rights to do some things, but not others. Having said that, there are certainly cases where an elderly person’s decline is advanced enough that there may be no other choice but to grant complete control over their affairs to a guardian.

Two Kinds of Guardianships

The affairs of an elderly person are broadly categorized two different ways for the purposes of guardianship. There is a guardian of the person and there is a guardian of the estate. To understand how these distinctions operate in the real world and how they offer courts flexibility, let’s consider a hypothetical example.

A person is physically disabled. They are confined to their bed. They are still receiving income in a range of forms, from a work pension to stock dividends to government disability programs. In many ways, they function very well, including the ability to have conversations with loved ones and remember faces, names, and events.

There are still real problems, starting with the ability to get to the bank. Our modern society has made tasks like check-cashing and bill payment easier for disabled people thanks to the ability to do so electronically. But it’s very difficult for any of us to function without leaving the house. Family and friends in the area can help to a certain degree, on matters like buying groceries. But somewhere along the line, important affairs that require the disabled person to be physically present are going to arise.

A Texas court can address this by granting powers of guardian of the estate, allowing a trusted friend or family member to execute in-person financial affairs on behalf of the disabled person.

The extent of the guardian’s power will be determined by the mental condition of the disabled person. In our example, the potential ward is disabled, but not incapacitated. That is, they have their mental faculties about them to make important decisions.

However, what if Alzheimer’s is creeping in. It’s not so bad as to be completely debilitating, but even the sick person knows they’re forgetting more and more names, faces, and events with each passing day. At the same time, the person would like to stay in their home a little longer–as long as they can remember where they are.

A part of guardianship of the estate is the right to sell property on behalf of the ward. A part of guardianship of the person involves making determinations on housing. These powers must be granted if a guardian is to eventually be the one to sell the home and move the ward into an assisted living facility.

What Are the Responsibilities of a Guardian in Texas?

The responsibilities of the guardian, as you might imagine, are high. The state of Texas holds guardians to the standard of a fiduciary relationship with the ward. Fiduciary duty is the same obligation those of us in the legal profession have to our clients, or that financial planners have to those that come to them. It is the obligation to exercise the highest degree of loyalty to the best interests of the person you are representing.

Furthermore, a guardian may not, under the Texas code, dispute the ward’s right to property. Let’s say there’s tension between older siblings. One of them inherited the family home after the death of the parents and that inheritance was the subject of a legal dispute. The bad blood has subsided, but it’s still lingering. Now, the sibling who inherited the house has become incapacitated in their late sixties. The other sibling, only a few years younger, might become the guardian. However, they cannot use this moment to contest ownership of the family house. The ward’s rights are protected.

The examples cited here are ones where guardianship might have been limited or there was some sort of dispute. In reality, it’s quite common for adult children to simply want to do right by their aging parents or relatives and to be seeking guardianship for the best of reasons. There is a clear process to follow in a Texas court.

A San Antonio guardianships attorney from the Law Office of Paul D. Hardy can help you secure guardianship for a loved one who is incapacitated. Call us at (210) 405-1985 today.