Definition of Guardianship
A guardianship is a court-supervised administration for a minor under the age of 18 or an incapacitated adult.
In some states, the term conservatorship is used to distinguish between proceedings involving minors or adults, however, in Texas, the term guardianship refers to both minors and incapacitated adults.
The person who is subject to the guardianship is called the “ward” and the person appointed by the court to act on the ward’s behalf is referred to as the “guardian“.
Definition of a “Minor” and “Incapacitated Person”
A “minor” is a person under the age of 18 who has never been married or had the disabilities of minority removed in a court proceeding. Texas law considers a minor to be an incapacitated person.
An adult over the age of 18 who is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or manage his or her financial affairs, due to a physical or mental condition, is considered an “incapacitated person”.
A person who must have a guardian appointed in order to receive funds from a governmental source is also considered to be an incapacitated person.
Types of Guardianships
There are two types of guardianships: a guardian of the person is the guardian appointed by the court to take care of the ward’s physical well-being; a guardian of the estate is the guardian appointed by the court to manage the ward’s financial affairs.
In some cases, only one type of guardianship is required for a ward, but in most cases both types of guardianships are required.
The guardian of the person and guardian of the estate is usually the same person, but may be different people depending on the circumstances.
Who May Serve as a Guardian?
Texas law establishes a priority list for who may serve as guardian for a minor or incapacitated adult. The court may skip over someone higher in priority if the court deems that person to be ineligible.
The court may decide a person is ineligible to serve as guardian if the person is a minor; the person’s conduct has been notoriously bad; the person is incapacitated; the person has certain conflicts of interest with those of the ward; the person, due to lack of experience, education or other good reason, is incapable of managing the ward or the ward’s estate; the person is found unsuitable by the court; or the person is not a resident of the State of Texas and has not designated an agent for service of process in Texas.
Guardianship proceedings are complicated and require extensive attorney involvement. Houston probate attorney Jeannine C. Flynn understands that clients seeking guardianship for an incapacitated or disabled loved one are facing a difficult and stressful time in their life, and she is dedicated to representing clients with empathy and compassion. If you need assistance with Houston probate, will or a guardianship proceeding, contact Jeannine C. Flynn, Attorney at Law.