What is a guardianship and when should it be considered?

A guardianship in Texas, depending on what state you’re in, can sound different than what a guardianship is in other states. So a lot of people have misconceptions about what it is. In Texas it comes out of the Estate Code. And it is a function whereby you go to court and you basically take away somebody’s constitutional rights because they are incapacitated and somebody else has to take care of those rights for them because they’re unable to.

Now, that sounds a little harsh, but that’s really what it is. There’s two types of guardianships in Texas. There’s a guardian of the person, which takes care of the body, and there’s a guardianship of the estate, which takes care of all of their property. And there’s a slight overlap when it comes to clothes and food ant thing like that. The threshold issue is, is the – and we call them proposed ward – is the proposed ward incapacitated to take care of certain things in their life and does somebody have to be appointed to step in there and take care of it?

Texas has changed their views on guardianship and what is incapacity an unbelievable amount since the 1990s. We now have a situation where the courts are – and this is through the legislation. But the courts are encouraging people to put least-restrictive alternatives into place. And because it’s such a moving target, if you have somebody in your family due to age or a mental illness or something that you believe has become incapacitated, you really have to get to somebody who is.