When A Family Member Or A Valued Friend Needs A Guardian

Guardianship is a legal arrangement “designed to protect vulnerable persons from abuse, neglect and exploitation” (source: The Texas Guardianship Association). People may be considered vulnerable because of their age (very young or very old) or disability. A guardianship is generally imposed when someone is unable to make their own decisions regarding their welfare and/or their finances.  Guardianship parameters may include guardianship of the person (that is, health and welfare) and/or guardianship of the estate (the person’s financial resources).  Accordingly, someone may need a Guardian of their Person, or they may need a Guardian of their Estate.

These categories are defined below:

• Guardianship of the Person – This involves making decisions about the ward’s healthcare and personal needs, such as their medical treatments and day-to-day living situation.
• Guardianship of the Estate – This type of guardianship involves management of the ward’s financial affairs, including their property and assets.
• Guardianship of Minor Children – When a guardianship is put in place for a minor, the guardian typically undertakes personal and financial guardianship, effectively taking on most of the legal responsibilities of a parental figure.

When Ford + Bergner LLP assists in initiating a guardianship, our lawyers do so through a probate court in Houston, Dallas, Austin or another area community. In areas where there is no separate probate court, we may bring the case in a court where probate matters are heard. A guardianship legally assigns the respective roles of a guardian and a ward (the vulnerable person that the guardian will be responsible for). The guardian may be a friend or family member or another capable person approved by the court.

Our legal team has significant experience with guardianships. To discuss your guardianship case, contact our skilled Houston attorneys at 713-260-3926.

How We Build A Case For Or Against A Guardianship

When seeking a guardianship of an adult who is unable to make appropriate decisions for themselves, Texas law requires that the application for guardianship be supported by the examination report of a doctor who certifies the nature and extent of the incapacity of the person for whom a guardianship is sought.  When appointed, a guardian’s responsibilities will be similar to those of a parent, encompassing personal welfare and well-being, as well as finances of the ward.

During the guardianship proceedings, the proposed ward’s interests will be represented by an attorney ad litem. The attorney ad litem is an independent attorney appointed by the court to represent the proposed ward’s interests, to make sure that the guardianship is handled appropriately for that person’s needs.

The Benefits of Guardianship

Restricting the basic rights of another adult is always an extremely serious matter and one that should not be considered lightly. It is, however, sometimes necessary for that person’s own good, as well as for the safety and peace of mind of the people around them. When a guardianship is deemed the most appropriate solution, it offers several powerful benefits to ensure the well-being of the ward. These include:

• Protection From Exploitation – While some people (and some high-profile media stories) paint guardianship as a potential path to exploitation of the ward by the guardian, it actually represents a powerful tool for protecting the ward from exactly that sort of exploitation by other parties who do not have their best interests at heart. The key here is to make sure the named guardian is a trusted party who will be dedicated to protecting the ward from all forms of abuse and representing their best interests in all decision-making.
• Help With Healthcare Decisions – A guardian can also make key medical decisions to ensure the ward receives appropriate healthcare and can serve as a trusted advocate in all healthcare scenarios.
• Financial Management – Guardianship ensures that the ward’s financial affairs have a dedicated and responsible manager to oversee them. This prevents financial exploitation and mismanagement of assets, preserving the ward’s wealth long-term to ensure they can meet their future needs.
• Personal Well-Being – A legally appointed guardian can also help make decisions about the ward’s living arrangements, schedule, and routine personal care, ensuring their day-to-day needs are met and they are living a full and enriching life despite whatever challenging circumstances led to the guardianship.
• Legal Authority – A guardian who has been properly named through the court also has broad legal authority to act on behalf of the ward. This provides a clear framework for decision-making and ultimate responsibility, reducing the potential for conflict and confusion.

If you still have questions about how guardianship works or how it can help you protect your loved ones and their assets, please feel free to set up a consultation with a member of the Ford + Bergner LLP guardianship team.

Alternative Solutions to Guardianship

Guardianship may not be the only way to accomplish the goals of watching out for the personal or financial welfare of a minor or an incapacitated adult. When guardianship is not the right solution or when a court has denied a motion for guardianship, there may still be other tools available. Powers of attorney, management trusts and other legal remedies may fill the bill.

When Ford + Bergner LLP assists individuals and families with the guardianship process, we are careful to advise these clients on the full breadth of legal tools available to them, including alternatives to guardianship, before moving forward. Some powerful alternatives to guardianship that can accomplish similar goals include:

• Durable Power of Attorney – This legal tool allows an appointed person to make financial and other legally binding decisions on behalf of someone who is unable to effectively manage such affairs for themselves.
• Medical Power of Attorney – A medical power of attorney allows the appointed person to make healthcare decisions, rather than financial ones, on behalf of the incapacitated individual.
• Management Trusts – Trusts are powerful and versatile tools that represent the overlap in a Venn diagram of financial instruments and legal solutions. Ford + Bergner LLP can help you set up and manage a customized trust intended to provide assets for the care of an incapacitated adult. By using a trust, you can set your own detailed criteria for how these assets are managed and disbursed without the need for input or oversight from the court.
• Living Wills – Many people mistakenly think of wills as a tool that only goes into effect after someone has passed away, but “living wills” also exist. A living will provides clear instructions on medical preferences in the event the testator (the person making the will) is unable to make their own decisions and express their own wishes.

While none of the above are exactly the same as a legal guardianship, you may be able to use one of them–or a combination–in a strategic way to effectively achieve your goals in seeking a guardianship. Please schedule a confidential consultation with a Houston guardianship lawyer from Ford + Bergner LLP at your earliest convenience. We would be happy to discuss your case further and begin exploring options to either petition the court for a guardianship or establish an effective workaround using trusts, wills, and powers of attorney.

The Responsibilities of the Guardian

Before you undertake the journey toward establishing a guardianship, you should also have a clear understanding of what is expected of a legally appointed guardian. Being guardian to an at-risk minor or incapacitated adult carries significant responsibilities. The duties involved in being a guardian may include:

• Managing personal care decisions, living arrangements, and daily needs
• Financial management (paying bills, protecting investments, etc.)
• Reporting to the court
• Advocacy for the ward in a variety of settings

Steps to Establishing a Guardianship in Texas

Establishing legal guardianship is a complex affair overseen by a rigid legal framework. It can represent a daunting multi-step process, but a Houston guardianship attorney from Ford + Bergner LLP will be able to guide you effectively through each phase of establishing a guardianship. While each case will look a bit different depending on the unique circumstances, here are some of the basic steps that will typically need to be undertaken:

1. Consultation – From the perspective of our Houston guardianship lawyers and support staff, this process begins when a prospective client first contacts us for a consultation. During this confidential, client-oriented conversation, we will assess your guardianship case and ask pertinent initial questions to determine whether we can move forward with your case.
2. Assessment – In the process of assessing the viability of your case, we will also analyze the potential use of guardianship alternatives like trusts and powers of attorney. Whether guardianship is on the table or not, we can make sure you understand all your legal options and their likely potential for success.
3. Initial Documentation – We can then move on to preparing the initial documents we will use to petition the court for guardianship. In addition to drafting our formal application to the court, we may also coordinate with medical professionals and other relevant authority figures to obtain all pertinent records and documents that support and detail the ward’s incapacity.
4. Attorney Ad Litem Appointment – In guardianship cases involving minors, the court will appoint an attorney ad litem, which is a special type of guardianship lawyer that represents the best interests of the minor child throughout the remainder of the proceedings.
5. Hearings – The proceedings will then move on to one or more formal hearings so the court can learn all of the relevant information that will be needed to make a final determination on the case.
6. Court Order – If the court agrees that guardianship is the best course of action, an official court order will be made establishing the guardianship and officially appointing the guardian.
7. Post-Appointment Activities – Additional training, reporting, and oversight may be ordered by the court as part of a guardianship. This means your responsibilities to the court are only beginning when a guardianship case is resolved. The guardianship team at Ford + Bergner LLP can provide ongoing support well beyond your court date, helping you meet all your post-appointment obligations.

Example Scenarios Requiring Guardianship

There is a vast array of different situations that may warrant petitioning a Texas court to establish a guardianship. Some common real-world scenarios include:

• Elderly Individuals With Dementia – As cognitive decline sets in toward the end of a person’s life, guardianship can be used to protect their finances, safety, and health, ensuring that their needs are managed responsibly even as they become unable to handle them personally.
• Adults With Disabilities – When adults have a seriously debilitating long-term mental or physical condition, guardianship provides a powerful legal framework for managing their healthcare, finances, and other affairs.
• Minors With Unsafe Home Lives – The context in which many people think about guardianship is a child living in an unsafe or unhealthy situation. Indeed, this is a valid reason for a concerned adult to begin guardianship proceedings.
• Children With Inherited Wealth – When minors inherit significant assets, this can be another good reason to look into a guardianship. This allows a trusted person to manage and protect these assets until the child reaches adulthood and can make their own decisions.
• Temporary Incapacity – In cases of temporary incapacity, such as in the aftermath of an illness or accident, a shorter-term guardianship can ensure that important decisions are made while the ward recovers.

Ford + Bergner LLP – Powerful Assistance for Houston Guardianship Cases

Guardianship is a serious and complex topic, and you don’t need to take it on alone. The team at Ford + Bergner LLP has a track record of success in helping Texans establish much-needed guardianships to protect their loved ones and their estates. Regardless of what situation has led you to research guardianship, we would be happy to help you understand and explore your legal options.

Here are some ways our Houston guardianship lawyers can help you today:

• Effective Legal Guidance at Every Step of the Guardianship Process
• Detail-Oriented Document Preparation and Case Timeline Management
• Powerful Advocacy and Representation in Court
• Ongoing Support Throughout the Guardianship
• Swift and Effective Dispute Resolution

The Houston guardianship attorneys at Ford + Bergner LLP have extensive experience assisting clients in obtaining guardianships for loved ones who can no longer make decisions on their own.  We are in the practice of law to improve our clients’ lives. This includes keeping our clients informed and taking initiatives in their best interest only with their approval. We welcome the opportunity to discuss your guardianship needs in Texas. Call us at 713-260-3926 or complete an online intake form.