Types of Guardianships in Texas
In a previous blogpost, we considered what is required to establish a guardianship. In this blogpost, let’s look at the types of guardianships that exist. (Before we do that, let me put some boneless chicken breasts on the grill. Okay, I’m back.) In Texas, there are three types of guardianships. One type is a guardianship of the person. A second is a guardianship of the estate. The third is a guardianship of both—of the person and of the estate. Let’s talk about each one.
Guardianship of the Person
A guardianship of the person is created when the incapacity clearly and convincingly affects the person who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, or to care for the person’s own physical health.
Your father could be partially or totally without capacity to take care of himself. Ask: can your father initiate and make responsible decisions regarding:
safely operating a motor vehicle;
making personal decisions regarding his residence;
voting in a public election;
making personal decisions regarding marriage;
taking care of his activities of daily living (feeding, clothing, caring for personal hygiene, etc.);
attending to activities instrumental to daily living (shopping, traveling, cooking, cleaning, etc.);
administering his own medications;
consenting to medical, dental, psychological, or psychiatric treatment.
In other words, your father could do some but not all of those tasks. Also, your father might be able to do some of them with support or assistance from others (you, your siblings, other loved ones, friends, relatives, etc.) and do other tasks without support or assistance from others.
Guardianship of the Estate
A guardianship of the estate is created when the incapacity clearly and convincingly affects the person who, because of a physical or mental condition, is substantially unable to manage or make responsible decisions about the person’s own complex business, financial, managerial or banking affairs. And for example, your mother could be partially or totally without capacity to take care of his business, financial, managerial or banking matters.
Your mother might be able physically to endorse a check but be mentally unable to decide whether to move money from one bank account into a certificate of deposit, sell a piece of real estate, designate a beneficiary on a life insurance policy, or execute a Will or a trust. Your mother might be able to do some things with the assistance of a third party and do other business, financial, managerial or banking tasks without any assistance or help from anyone.
Imagine a millionaire who is 79-years old suffering from Alzheimer’s disease, is a diabetic, and needs daily insulin. He is the owner of a successful automotive repair shop. He has been in a romantic relationship with a woman 40 years his junior for the last eight years and she has moved into the apartment above his shop with him. Always known as a frugal man, the millionaire recently purchased a home valued at $750,000 after living in the modest apartment located above his automotive repair shop for 3 decades. He believed the home only cost $230,000. He purchased a $106,000 Corvette that he gave to his girlfriend. He has also begun to use his money market account to pay business expenses—expenses which were previously paid with his business account. His money market account shrunk from more than $300,000 to approximately $107,000 in three months. His girlfriend presented the ward’s bank with a power of attorney, asking to be added to his accounts.
The millionaire clearly and convincingly is incapacitated and may need a guardianship to protect him from exploitation and abuse. Whether a guardianship is needed hinges on whether some other alternatives to guardianship or Supports and Services are both available to the millionaire and also are feasible. That is an issue discussed in a previous blogpost. (Four minutes on each side of those chicken breasts and they’ll be ready for the sauce.)
Guardianship of the Person and the Estate
A guardianship of the person and of the estate is created when the incapacity clearly and convincingly affects the person who, because of a physical or mental condition, is substantially unable both (i) to provide food, clothing, or shelter for himself or herself, or to care for the person’s own physical health, and (ii) to manage the person’s own business, financial, managerial or banking affairs.
Again, your grandfather may be partially or totally incapacitated—able to accomplish some tasks but not others. And, like the examples above, your grandfather may be able to do some tasks with the help of others and succeed in yet other tasks without any help at all.
To determine what guardianship is appropriate, seek the advice of an attorney who knows the Texas Estates Code and guardianship law. (It’s time for me to apply the sauce to those chicken breasts. Enjoy!)