A guardianship is a court proceeding that typically refers to the assigning of legal authority over a child or other individual who is incapable of caring for their own interests, whether it’s personal interests and/or property. Courts try to provide for such a person’s (called a proposed ward) care and financial management while preserving–as much as possible–the ward’s independence and right to make decisions affecting his or her life.

In the event guardianship is not established, a court may intervene on behalf of the ward. Proper planning is critical to ensuring that your loved ones are properly cared for in the event of your death.

Why Create a Guardianship?

Guardianships are created for numerous reasons. People become incapacitated due to disease, injury, or developmental disability. No matter the reason, the decision to create a guardianship is often painful and difficult for the proposed ward and his or her family.

How is incapacity determined?

A proposed ware can be either a minor (under 18 years old) or an adult. Texas law defines an incapacitated adult as a person who, because of physical or mental condition, is substantially unable to

• provide food, clothing or shelter for himself or herself;
• care for his or her own physical health; or
• manage his or her own finances.

A person is not legally incapacitated until a court has declared that the person is so. The court will also determine how physically or mentally limited the proposed ward is and will grant the extent of authority with the guardianship accordingly.

What types of guardianships are there?

A Guardian of the Person is appointed to take care of the physical well-being of a ward and a Guardian of Estate is appointed to care for a ward’s property. Often both a guardian of person and a guardian of estate are appointed at the same time,  and this can be the same person.

There are some cases where a proposed ward only needs a Guardianship of the Estate, such as if a minor inherits a large estate and the parents would like the estate to be put aside until the minor reaches a certain age.