Your Aging Baby-Boomer
Do you know someone who is incapacitated? Do you know what incapacitated means? Do you know what a guardian is? Could you, or should you become a guardian for an adult?
You might not have considered this, but with Baby Boomers living longer than previous generations, this has become a reality for many Texans.
What Does it Mean to be Incapacitated?
“Incapacitated person” refers to three types of individuals under the Texas Estates Code (effective January 1, 2014). The first is a minor, meaning any individual under age eighteen who has never been married and has not had her status as a minor removed by the courts (i.e., she has not been emancipated).
The second, is an individual who must have a guardian in order to receive funds due to her from a governmental source.
The third, and most common among the aging Baby Boomers, is an adult who is substantially unable to provide food, clothing, or shelter for herself; care for her own physical health; or manage her own finances, because of a physical or mental condition. A common instance of this is a parent who has advanced Alzheimer’s or dementia.
What is a Guardian?
A guardian is an individual appointed and approved by a Court to serve the best interests of the incapacitated individual or ward. A person may be appointed as guardian of the person, the estate, or both.
The guardian of the person is appointed to protect the well-being of the ward’s physical body and encourage self-sufficiency whenever possible. The guardian of the estate is appointed to ensure that the ward is cared for financially and to ensure that their assets are handled prudently.
Both positions require confidence, trust, and responsibility and are held to high standards by the Court.
Do Adults Need Guardians?
Although not all guardianships involve adult wards, it has become more prevalent in recent years. Since most children have parents who are their caregivers, the only time a need arises for someone to be appointed as guardian of a minor is when they are orphaned, their parents’ rights are terminated, or they are some sort of prodigy or celebrity and need someone to protect their financial assets.
Adults, on the other hand, may become incapacitated for many other reasons; even if only temporarily.
Who can be a Guardian?
Any interested, competent, adult may become a guardian for another adult. The Estates Code lists eligible persons in order of preference. The first being the incapacitated person’s spouse. The next being the nearest of kin to the incapacitated person. If the individual’s spouse and family members refuse or are unable to be guardian, the court will appoint any eligible person.
Can I Choose My Guardian?
A competent person may submit a written declaration which designates who she would like as a guardian in the event she becomes incapacitated. She may even offer up alternatives in case anyone in the list cannot or does not want to be her guardian. The Court must appoint a designated person as guardian above all other eligible persons.
REMEMBER that you must do it while you have capacity. If you wait until you become incapacitated, you will not have much of a say in who the court appoints.
What if No One Wants to Be My Guardian?
Texas allows individuals to become Private Professional Guardians, which means individuals are hired to be someone’s guardian. However, the Texas Supreme Court has set out rules, standards and policies that must be followed in order for these individuals to become certified. Texas Courts Online has monthly updated lists of individuals who are certified, provisionally certified, and those with disciplinary actions against them.
-See Texas Courts Online
An appointed guardian has many duties and requirements. If you are considering becoming a guardian or naming someone as your guardian should you become incapacitated, please do not make the decision lightly. A guardianship takes basic rights away from individuals and therefore should be done only in the most serious situations. If you are close to an individual who might need a guardian, please consult with your local guardianship attorney before taking any action.
–Authored by Carrie A. Harris, B.A.,
Matthew Harris Law, PLLC – Family Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479