As a person ages, it may become necessary for someone to help him or her manage their affairs because of disease, injury, impairment, or for any other reason. If you can do so, you may be able to apply for guardianship on behalf of that individual. You would act as the person's guardian while the person you are caring for would be your ward. You must understand the implications of what it means to become a person's guardian as well as what options exist beyond guardianship which may serve the ward better than a formal guardianship application and proceeding.
It may be the person needs a guardian for the rest of their adult life because he or she suffers a significant disability of some sort. This could be something either mental or physically related. Or the person may have a debilitating illness that is slowly eroding his ability to earn an income and provide for themselves. There are advantages and disadvantages to having a guardianship approved for an individual. Let's run through those to begin today's blog post from the Law Office of Bryan Fagan so that you can have a better idea of what to expect from this process and why guardianship may not be the ideal arrangement for the person in your life.
Advantages and disadvantages of guardianship
Guardianships are aimed at protecting people from those who may try to harm them- physically, emotionally, or financially. Guardianships are supposed to benefit vulnerable people who otherwise would have difficulty providing for themselves or protecting their well-being in this way, an adult under a guardianship would be similar in stature to a minor child and their parent. As a guardian, you would be able to help your ward with their daily life- caring for their hygiene, taking him or her to the doctor, and helping him or her pay bills. You would also be able to legally determine and influence where your ward lives, what kind of medical treatment he or she can receive as well as how their bills and debts are handled.
On the other hand, when you are appointed as the guardian of an individual this means that you are going to take on the responsibilities that come along with it. This is asking a lot of yourself, and you will need to consider if you have the temperament to provide around-the-clock, all-encompassing care and advocacy for this person. Be honest with yourself to determine if this is a role for you. If not, explore other options or other people who may be better suited to act as a guardian for this person in your life.
The ward would lose most of their basic rights by having a guardian appointed to their case. Their ability to influence where he or she lives, what he or she does for medical care, and other financial considerations would be swept up into the guardianship. The ward's family members can always work to advise the guardian in certain areas but the buck stops with the guardian when it comes to decisions regarding the ward's well-being. Having an attorney to assist with this process is critical.
When a person agrees to serve another as their guardian, he or she takes on tremendous responsibilities in doing so. This is a serious matter, and the role of a guardian requires a great deal of contemplation before agreeing to step into a person’s life to fulfill this role. Understand that if you are appointed as the guardian of another person (known as a ward) you have a fiduciary duty to that individual until the time that you are discharged or released from your duty by a court. This can continue even after the ward has passed away. Make sure that before you take on this responsibility you discuss your options with an experienced estate planning attorney with the Law Office of Bryan Fagan.
How to begin the process of obtaining a guardian or becoming a guardian
When you are appointed as a guardian of a person and/or their estate then you will need to sign and have notarized an Oath of Office. The bond which you need to acquire is your obligation written down with a monetary penalty attached to it. This means that you can be penalized for failure to perform your duties adequately or to act as a fiduciary on behalf of your ward. You would need to file your oath and bond within twenty days of being appointed as a guardian or you risk having your guardianship set aside by the court.
Much like when acting as the executor of a person’s will, as guardian you need to obtain “letters” which will give you the authority to act on behalf of the ward. In the guardianship setting these are known as Letters of Guardianship and you would need to contact your local county or district clerk to obtain them. These letters act as proof that you are the guardian of an individual and have the authority to act on their behalf in specific areas.
What does it mean to become the guardian of a person?
In the order which appoints you as guardian, you will see whether you were named as the guardian of a person, guardian of an estate, or guardian of both. When you are the guardian of a person that means you are charged with that person's day-to-day care. You will live with that person and establish where he or she lives. This is an all-encompassing role where you will provide that person with clothing, food, shelter, and medical care. Doctor’s appointments including the decision whether to allow for inpatient psychiatric care will be your area of responsibility.
Especially if you are the guardian of a younger person, you may also need to make decisions for him or her regarding their employment or academic situation. Additionally, to reduce the financial burden of caring for your ward you will be able to apply for government aid in areas like health insurance. This is key given that you can only spend money in the estate of the ward with a court order. It is not practical to wait for court permission to do something like this so government programs may figure prominently into your plan to act as the guardian to a person.
When does the obligation to care for your ward come to an end?
When you act as guardian of the person you will have the duties and obligations until that responsibility is lifted or set aside by a court. This includes keeping in near-constant communication with the family of your ward. For instance, if your ward were to pass away then you need to inform the relatives of any funeral details as well as where the burial will be for the ward.
There are also requirements in place when it comes to your ward moving physical locations from place to place. For instance, if your ward is admitted to a hospital or other medical facility for care lasting longer than three days you must inform your ward's family of this situation. Additionally, if your ward moves in any capacity or stays with another person other than you for longer than one week the obligation to notify your ward's family kicks in.
With all these responsibilities and obligations in mind, it puts you in a position where you can act on behalf of your ward to a great extent but also places liability on your shoulders, as well. Since you can be held accountable by the family of your ward as well as by the court itself it is a good idea for you to consult with an experienced guardianship attorney before choosing to do anything new or novel concerning the well-being of your ward. An attorney can provide you with perspective which can be helpful when it comes to making decisions for your ward which may be occurring for the first time in his or her life since you became guardian.
Each year you are obligated to file what is known as an Annual Report with the court which appointed you as guardian of this person. This report is due each year within sixty days of the date on which you were appointed as guardian of that individual. If you fail to file this report, you may find yourself in a position where your guardianship is lost and you are made to pay a fine to the court. Many times, guardians will choose to have an attorney assist in drafting and filing these reports to ensure the past year has been summarized well enough to not merit further court intervention.
To close the guardianship at the end of your term you do not necessarily have to do anything. Depending upon the guardianship orders of the court, the guardianship will be closed once your ward turns 18, once the Ward is declared by a judge to no longer be incapacitated, or if your ward were to pass away. A court can also simply determine that the Ward is no longer in need of a guardian in which case the court will discharge you of your duties. Once your final report and application to terminate the guardianship is filed with the judge it would only require the signing by a judge for you to no longer be responsible to that person.
What does it mean to be the guardian of a person's estate?
To be named as guardian of an estate means that you are focusing more on the financial well-being of your ward than on their physical well-being. The assets of your ward are what make up his or her estate. While you do not have responsibilities about medical care or housing your ward, you do have financial deadlines to attend to and updates to provide the court with. In this regard, you have more frequent interactions with the probate court than would a guardian of a person.
First, you have the power to take possession of your ward's assets. You need to be able to take possession of their assets to begin the process of managing those assets so that they maintain their value and are inventoried and appraised. By the same token, if your ward owns any rent-producing assets you oversee collecting that rent as well as acting as a creditor towards anyone who owes your ward money. One important thing to note about this relationship is that you are acting as a fiduciary. This means that you must put the interests of your ward ahead of your own if there is any conflict. Your assets need to be kept separate from the assets of your ward.
To perform certain actions on behalf of your ward you will need to go back to court and petition them for permission to buy or sell property. If your ward is involved in a lawsuit and the opposing party is seeking a settlement on the issues, then you would need to reach out to the probate court for permission to negotiate and settle any ongoing litigation. When your ward's children or dependents need money for their day-to-day care, education, or health care then you would need to seek permission from the court to do this because your guardianship orders limit how you can spend the ward's money.
Again, when it comes to spending money for another person you should be sure that doing so is necessary and in their best interests. While the guardianship does provide you with authority to act on behalf of your ward to a great extent, those powers are limited. A court will be looking at your actions closely and you can bet your bottom dollar that the family of your ward will be doing the same. For that reason, it is a great idea to seek the advice of an attorney before performing any actions which you are unsure of. It may be the case that you need to speak to the judge before spending money on behalf of your ward.
Short term: What do you need to do as a guardian within one year of appointment
Get off to a good start as a guardian by being mindful of the following things you must do in your first year as a guardian. First, get a good idea of the property owned by your ward by inventorying and appraising all their property. Do not skip anything and include all real property of your ward which is in the State of Texas. Personal property of the ward needs to be included, as well, as well as a fair market value for the property as best you can determine it. You may need to hire an appraiser of some sort to value a small business for example. However, in other instances, you can perform the valuation or appraisal yourself by looking up similar items online or through other reference guides.
If your ward is married, then you should perform an analysis as to what property belongs in the community estate of your ward and which is part of his or her separate estate. If your ward acts as a creditor to anyone or any entity, then you should get a list of claims owed to him or her and compile a centralized list. Once you have performed all these actions then that list or report should be provided to the court through a filing within thirty days of you being appointed or qualified as guardian.
On the other hand, if there are creditors to whom your ward owes money then you need to have published a general notice which states that you have been appointed as guardian to your ward’s estate. You would need to mail guardianship letters to the creditors within four months of appointment essentially letting them know what the situation is with your ward and allowing them an opportunity to contact you for additional negotiation on the debt owed. You must mail notice to all secured creditors of your ward but are not obligated to do so regarding unsecured creditors.
How to formally close your guardianship
As we previously talked about there are three main events that can signal the end of a guardianship. Those events could be when your ward turns 18 when your ward passes away, or when your ward is no longer incapacitated. The first two are obvious events that would trigger the end of the guardianship. However, the same court that declared your ward to be incapacitated would then need to come back and declare your ward can handle their affairs.
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