Assessing the Drawbacks and Benefits of Adult Guardianship

What is Adult Guardianship?

Adult guardianship is a legal relationship in which a person (the “guardian”) is appointed by a court to make decisions on behalf of another adult (the “ward”). Adult guardianship arrangements are meant to benefit and protect vulnerable adults, such as those who are dealing with cognitive or mental disabilities, or those who may not be able to communicate their wishes due to a physical condition.

If you are considering seeking adult guardianship, or would like more information about how it works and what options you may have for your situation, our guardianship and probate attorneys at Hendershot Cowart P.C. are available to help.

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Types of Adult Guardianship in Texas

In Texas, there are four types of adult guardianship, including:

  • Guardian of the person: This can be full or limited. The guardian will make important personal decisions for the ward, including their living arrangements, whether they will enter a care or nursing home, and the type of medical treatment they will receive. A guardian of the person may also represent the ward in important, personal legal matters, such as divorce and other non-financial issues.
  • Guardian of the estate: This can be full or limited. The guardian will be responsible for managing their ward’s financial affairs, including paying bills, overseeing investments, applying for Medicaid and other government benefits, and can even buy and sell property on behalf of the ward.
  • Guardian of the person and the estate: This can be full or limited. The guardian will make personal and financial decisions for the ward, as outlined by the court’s guardianship order.
  • Temporary guardianship: This is typically used in urgent situations as a stopgap to ensure that the ward’s affairs are taken care of while permanent guardianship is established.

Once established, the guardian has several legal responsibilities that must be fulfilled. In addition to managing the affairs of their ward as outlined in their guardianship order, they must also file yearly reports and accountings of the ward’s estate with the court that appointed the guardianship. Furthermore, they may also be required to submit certain decisions to the court for approval, as outlined by their guardianship order.

The Benefits of Adult Guardianship

When someone is incapacitated or otherwise unable to make important life decisions for themselves, a legally appointed guardian can help them make individual decisions and, in many ways, work to safeguard the ward's well-being. Depending on the type of guardianship established, the guardian can make a wide range of decisions for their ward, including medical, financial, educational, and legal.

There are several potential benefits to adult guardianship:

  • Protection: The guardian can help protect the ward’s health, safety, and general welfare by making important decisions on their behalf.
  • Support: The guardian can provide emotional and practical support to the ward, helping them live a full, more independent life.
  • Finances: The guardian can manage the ward’s financial affairs, ensuring that their bills are paid and their assets protected.
  • Medical decisions: The guardian can make important medical and care decisions on behalf of the ward when the ward cannot do so themselves, ensuring they receive the care they need when they need it.
  • Legal representation: The guardian can represent the ward in legal matters, including signing contracts or representing them in court.

From helping their ward secure housing to ensuring that their financial concerns are taken care of, the guardian plays a critical role in their ward’s life. As such, it is vitally important that anyone who is or will be appointed guardian over someone else seriously consider the weight of the responsibility and consult with an attorney so that they are fully aware of what will be expected of them.

Guardianships are unusual legal relationships, and they can make for complex proceedings. Learn more about navigating the Texas guardianship process.

Potential Drawbacks to Adult Guardianship

Though the goal of a guardianship is to ensure that the ward is taken care of both personally and financially, it is not without its drawbacks. As with any legal arrangement, guardianship will not be appropriate for every situation and generally should not be your first-choice solution.

Some potential drawbacks to guardianship include the following:

  • A loss of autonomy for the ward: This is the most significant drawback to establishing legal guardianship over an adult. Because the guardian is responsible for making decisions on behalf of the ward, the ward may not have any say or may feel they have lost control of their own lives. This loss of independence can be difficult for the ward to deal with emotionally and practically.
  • Costs: Establishing legal adult guardianship can be a costly process, and the expenses associated with legal fees and other ongoing costs related to the care and support of the ward may be significant.
  • Conflict: Depending on the circumstances of the guardianship, there may be conflict between the guardian and the ward over decisions that are made. This can be particularly challenging if the ward is able to understand and express their wishes but is unable to make their own decisions.
  • Lack of flexibility: Because guardianship is a legally binding arrangement, it can be very difficult to amend or terminate once it is established. As circumstances change over time, the rigidity of legal guardianship may become problematic.
  • Stigma: There may be a stigma attached to adult guardianship, as it implies that the ward cannot make their own decisions and requires the support of a guardian. This can be a source of shame or embarrassment for the ward.

Before moving forward with a guardianship, it is important to consider all potential benefits and drawbacks to establishing a guardianship. This is something that your attorney can help you with, as there may be alternatives to guardianship that serve the potential ward better.

Alternatives to Adult Guardianship

It’s important to note that adult guardianship should only be considered as a last resort, and it is generally preferred for adults to have the capacity to make their own decisions whenever possible. In most cases, less restrictive alternatives can be used to give adults the support they need to make their own decisions.

Alternatives to guardianship can include:

  • Powers of attorney
  • Advance health care directives
  • Special needs trust

Another option to guardianship, supported by Texas law, is establishing a supported decision-making arrangement. This enables an adult with a disability or other impairment that affects their ability to make certain decisions to enter a beneficial legal agreement with their chosen supporter. This legal arrangement allows the supported adult to provide their supporter with the information needed to assist them in making important decisions regarding their everyday life.

Altering or Terminating a Guardianship

Modifying or ending a guardianship requires going through a legal process. This process will likely require the assistance of an attorney as you will have to present evidence that the proposed changes or termination are in the ward’s best interest. These proceedings are held at a court hearing before a probate judge.

If you are considering seeking guardianship or need help amending or terminating an adult guardianship order, contact Hendershot Cowart P.C. for guidance. Our team is well-versed in all aspects of Texas guardianship law, and our Houston-based law firm is prepared to help you today.

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