book laying on table titled guardianship

What Is a Declaration of Guardianship? How Does it Work?

No one wants to think about a prospective time in the future when they won’t be able to care for themselves. Worse still is a parent’s responsibility to think about what happens if they pass away when their children are still young. The unfortunate reality is that sad and tragic accidents do happen. The state of Texas offers legal mechanisms to at least make certain that your care, or that of your children, is handled in a manner that you wish. One of those mechanisms is a declaration of guardianship.

A declaration of a guardianship is a document where you lay out who is to care for you in the event that you can no longer care for yourself. Or, it dictates who is to care for your children in the event that you are no longer able. The declaration is very important to have in place, because without it, Texas law may place authority in the hands of someone you might not want.

How Legal Guardianship Works

The care of your affairs, or those of your children, are divided into two distinct categories.

There is a guardian of the person. This refers to the person responsible for meeting the physical needs of the person by providing food, shelter, clothing, medical care, etc.

There is also a guardian of the estate. This refers to the individual who cares for the property and financial affairs.

Furthermore, each of these guardianships can be split into two types. There is full guardianship, where the guardian has complete responsibility. This might be exercised when an elderly person has advanced Alzheimer’s. It would certainly qualify in the care of minor children if the parents are deceased.

There is also limited guardianship. As the term suggests, this means while a guardian does have some legal authority, they are not completely responsible. An example would be someone who has suffered serious physical incapacitation and requires a guardianship of the person, but their mental capacities are sharp enough to still run their own financial affairs.

One important note–while legal guardianships bear some similarities to power of attorney, these are not the same. A power of attorney empowers another individual to make decisions for you in the event of your incapacitation but does not necessarily give them the responsibility of caring for your physical needs. And power of attorney does not address what happens to minor children.

Furthermore, power of attorney is designated prior to the event of incapacitation. It’s possible for it to designate true of guardianship as well–in fact, we strongly encourage people to discuss guardianship with their attorney while still in good health. But the reality is that guardianships often come up after the fact, with caregivers seeking the legal authority thy need to act in matters medical or financial.

When Does Guardianship Start?

Let’s presume a guardian has been identified and the appropriate legal documents put in place. At what point does that guardianship go into effect? What if, heaven forbid, you and your spouse are in a serious car accident. If the accident was fatal for both of you, then guardianship of your children would begin immediately.

But what if you’re both in a coma? It’s up to a Texas court to determine if you have both reached the threshold of incapacitation. This would be done based on written opinions from the medical personnel in charge of your care. If the court believes you are incapacitated, then your children’s guardians will receive the appropriate legal authority.

Children–anyone under the age of 18–are, by definition, considered incapacitated. Even if a 17-year-old feels they can take care of themselves and their younger siblings, that must wait until they reach the age of legal adulthood.

The same legal process applies in the event that an elderly person suffers from a serious mental illness. The court will receive written medical assessments and decide if the time must come to transfer guardianships of finances and care to the designated guardian.

What If No Guardian Has Been Designated?

Cases where guardianship has not been granted are not uncommon and can create serious discord in a family. If there is no guardian, the question of who has final legal authority must be determined by a court. Texas courts follow a process that seeks to keep these legal powers within the family, but all of us are familiar with families who–even if they get along well–have very different ideas about what proper care should be.

A surviving spouse is always first in line for authority. This applies to custody of your minor children and to your own personal care if you become incapacitated.. This is true even if a guardianship plan is in place. To use our example of parents in a car accident–if one dies and the other is in a coma, the surviving parent must be legally declared incapacitated before guardianship takes effect.

If no spouse is available, courts will look to the nearest ascendant to the child, considering adult siblings, grandparents, aunts, and uncles. If none of these are available or considered appropriate guardians, courts then slowly move outward, to more distant relatives or to close friends of the family.

Who decides what is considered an appropriate guardian in these situations? The court. Courts have a large degree of latitude in determining who will care for your children or who will care you personally in the event of death or incapacitation. It’s very possible the court will reach a decision that you might not like. That’s why having a guardianship plan in place is so important.

How Do I Get Guardianship?

Perhaps you are the person who has been caring for an aged parent. You know the parent wants you to be the one in charge of their care and affairs, but that’s never been documented. As time goes on, it’s possible that siblings might start to contest your decisions. Or you simply need legal authority to cash the Social Security checks on behalf of your parent.

You need legal guardianship to properly care for your parent, and there is a process in place for you to get it. After filing the appropriate paperwork, a court hearing will be held with you and your parent present. The court needs to determine that your parent is indeed incapacitated, that you will protect their rights and have the necessary qualifications to carry out the responsibilities of being a guardian.

If it’s minor children that you’re seeking to secure guardianship over, the process is more or less the same. The children will need to appear in court with you. Courts will also want to be sure that guardianship is not being requested as a means of changing school districts. Otherwise, the same criteria–your basic ability to accept the rights and assume the responsibilities of guardianship–will be assessed.

Guardianship is important. We know you would rather make decisions about who will assume the care of yourself or your children in the event it becomes necessary, rather than delegating that to a court of law. At Hembree Bell Law Firm, PLLC, we can walk you through the process of putting your wishes into formal legal documentation. Guardianship deals with circumstances no one wants to think about, but establishing who you want in charge in advance can at least give you peace of mind. Call us today at (512) 768-9737 or contact us online to set up an initial consultation.

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