Guardianship

Guardianship is a legal means to provide protection and care for an incapacitated person without having to obtain that person’s consent. Guardianships are often necessary when a person lacks the capacity to make decisions due to an accident, healthcare issue, or developmental disability.

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The elderly, especially those of extremely advanced age, often need a guardian to assist them due to some type of age-related incapacity, whether that incapacity be a physical impairment, mental impairment, or both.  Yet it is important to keep in mind that an incapacitated person placed under a guardianship may lose some of their most basic civil rights, such as the right to vote and the right to drive a car.  Accordingly, a court will not create a guardianship as long as there are other alternatives available that are less restrictive than a guardianship. In some cases, however, a guardianship is still the most appropriate option.

There are two types of guardianships:

  1. the Guardianship of the Person provides authority for caring for the personal needs (such as food, shelter and clothing) of the incapacitated person;
  2. the Guardianship of the Estate provides authority for managing the financial assets of the incapacitated person.

A Court may create a Guardianship of the Person, a Guardianship of the Estate, or a Guardianship of the Person and the Estate, depending on what is in the “best interest” of the incapacitated person. The legal means for establishing a guardianship is a complex process that often requires a medical exam by a licensed physician as well ongoing annual reporting requirements to the Court after the guardianship is established. As there often are alternatives available that are not as restrictive as a guardianship, it is advisable to seek the advice of an attorney before attempting to establish a guardianship over someone who appears to be incapacitated.

 

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The Summit, McKinney, Texas