Many times, people are familiar with the term “guardian” in the context of someone to care for minor children, whether it be a parent or other adult who is responsible for the child. However, in modern context, the term is most appropriately a reference to someone who is appointed with the help of a lawyer to care for an incapacitated adult in a guardianship in Texas including Dallas, Houston, Fort Worth, Austin and San Antonio.

Guardians of Minors....

Texas law states that the natural parents of a minor child are the natural guardians of the person, but not the estate, of their children. If one of the parents dies, the surviving parent is automatically the naturally guardian of the person. Because of this automatic recognition of parents as the guardians of their children, no appointment from a Court is necessary to validate the guardianship status.

However, this automatic provision does not relate to money or property to which minor children may become entitled. For instance, if a child inherits property from a parent or grandparent, the law presumes that the minor is not capable of handling the money for himself. Likewise, the law does not provide any automatic provision for a parent to serve as the guardian of the estate to manage the money for the children. Instead, in this instance, a Probate Court would have to appoint a guardian of the estate to manage money for a minor child.

In the event that a minor child’s parents both die or relinquish their parental rights, then the Probate Court would be required to appoint a guardian of both the person and estate of the minor child. In this instance, the law does not recognize any automatic provisions for determining a guardian to care for the minor children.

Guardians of Incapacitated Adults....

While Texas law lays out provisions for determining those who have priority to serve as the guardian of an incapacitated adult, it is necessary for the Probate Court to make an official appointment of a guardian for any adult who needs one. Generally, the surviving spouse or children of the incapacitated adult will have priority to serve. From there, the Probate Code establishes a mechanism for determining the best person to serve as the guardian.

Because of the growing number of adults in the United States who become incapacitated prior to their deaths, the need to appoint guardians for such people has increased substantially in recent years. Likewise, it is generally necessary to appoint a guardian for younger adults who may have been born with a disability that leaves them incapable of taking care of themselves when they become adults. Likewise, adults who may have been injured in an accident and who are no longer capable of caring for themselves will need guardians to make decisions for them.

Guardians for incapacitated adults will generally have the responsibility of making health care decisions and/or financial decisions for their Wards. Those guardians will be required to report to the Court regularly for their actions and the condition of the Ward.

Guardianships for both minors and adults are generally very complex. The attorneys at Ford+Bergner LLP routinely advise clients related to these matters, and we encourage anyone having questions related to these issues to contact us for more information.