I.WHAT IS A GUARDIANSHIP?
A. Basic Definition: A guardianship is a Court
supervised procedure where the Court gives one
person the legal authority to make personal or financial
decisions for a person who can no longer make such
decisions for himself or herself.
B. Incapacitated Person: A person for whom a
guardianship is necessary is known as an
“incapacitated person” (“IP”) which is defined in TPC
601(14) to mean a minor or an adult individual who,
1. because of a physical or mental condition,
2. is substantially unable:
a. to provide food, clothing or shelter for himself or
b. to care for the individual’s own physical health; or
c. to manage the individual’s own financial affairs.
C. Purpose of Guardianship: Unless a Court
determines that a guardian with full authority over an IP
is necessary, the Court should limit the authority of the
guardian so that it is the least restrictive authority
possible. Section 602 of the TPC provides that:
1. A court may appoint a guardian with full authority
over an IP; or
2. A court may appoint a guardian with limited authority
over an IP:
a. As indicated by the incapacitated person’s actual
mental or physical limitations, and
b. Only as necessary to promote and protect the
well-being of the person.
3. Except for minors, the Court may not use age as the
sole factor in determining whether to appoint a
guardian for the person.
4. In creating a guardianship that gives a guardian
limited power or authority over an IP, the Court shall
design the guardianship to encourage the
development or maintenance of maximum self-reliance
and independence in the incapacitated person.
D. Guardian: A guardian is the person who accepts
the Court’s appointment to be responsible for making
decisions for the IP. A guardian has only those powers
specified in the Order Appointing Guardian. Generally,
two types of guardians exist:
1. Guardian of the Person – A guardian of the person
a. right to have physical possession of the IP and to
establish the IP’s legal domicile;
b. duty of care, control and protection of the IP;
c. duty to provide the IP with clothing, food, medical
care and shelter; and
d. power to consent to medical, psychiatric, and
surgical treatment other than the in-patient psychiatric
commitment of the IP.
2. Guardian of the Estate – A guardian of the
estate of the IP has the following powers and duties:
a. to possess and manage all property of the IP;
b. to collect all debts, rentals or claims that are due to
c. to enforce all obligations in favor of the IP; and
d. to bring and defend suits by and against the IP.
Here is some excellent
information on guardianship.
This is to aid you in the
process and educate you in
your choice of attorney. It is
not specific legal advice and
will not, by itself, constitute an
attorney / client relationship.
Special thanks to Judge King
in the first Tarrant County
Probate Court, on whose
material this is largely based.
|What is a Guardianship?|
Law Office of Eric J. Smith
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