Guardianships 

A guardianship is a court-appointed relationship in which one person (the guardian) is given the legal responsibility to care for another person (the ward) who is unable to make decisions or manage their own affairs due to age, incapacity, or disability. In the context of guardianships, there are two main types: guardian of the estate and guardian of the person. Each type of guardianship focuses on a different aspect of the ward’s well-being and affairs.

Guardian of the Estate

A guardian of the estate is responsible for managing and protecting the financial assets and property of the ward. This type of guardianship is generally established when the ward is unable to manage their own finances due to mental or physical incapacity, or in the case of a minor who is too young to handle their own assets.

• Duties of the Guardian of the Estate:
  • Managing Assets: The guardian must oversee the ward’s property, which could include real estate, personal property, investments, bank accounts, and other financial assets.
  • Paying Debts and Expenses: The guardian is responsible for paying the ward’s bills, taxes, and any other financial obligations from the ward’s estate.
  • Making Financial Decisions: The guardian must make financial decisions in the best interest of the ward, including selling assets if necessary or investing the ward’s funds prudently.
  • Accounting: The guardian must typically file regular reports with the court to show how the estate is being managed, ensuring transparency and accountability.
  • Protecting Property: The guardian must take steps to protect the ward’s property from theft, fraud, or mismanagement.
• When is a Guardian of the Estate Needed?
  • For an adult who is incapacitated due to physical or mental disability (e.g., due to dementia, illness, or injury), and unable to manage their finances.
  • For a minor who has inherited property, or who receives significant financial assets (such as a settlement or life insurance payout).

Guardian of the Person

A guardian of the person is responsible for the care and personal well-being of the ward. This includes making decisions related to the ward’s health, living arrangements, education, and overall personal care. The guardian of the person has the responsibility to ensure that the ward’s basic needs are met and that they receive appropriate medical treatment and care.

• Duties of the Guardian of the Person:
  • Providing Personal Care: Ensuring the ward is provided with food, clothing, shelter, and other basic needs.
  • Medical Care: Making decisions about the ward’s healthcare, including choosing healthcare providers, consenting to medical procedures, and managing healthcare plans.
  • Residence: Determining where the ward will live, including decisions about moving to a nursing home, assisted living facility, or other care settings if necessary.
  • Education and Socialization: For minors, the guardian is responsible for making decisions about education, extracurricular activities, and socialization.
  • Well-Being: Ensuring that the ward is safe, treated with dignity, and protected from harm or exploitation.
• When is a Guardian of the Person Needed?
  • For an adult who is incapacitated and unable to make decisions about their personal well-being or care.
  • For a minor whose parents are unable or unwilling to provide appropriate care, or whose parents are deceased or otherwise unavailable.

Key Differences Between the Two Guardianships

 Guardian of the Estate

• Focuses on financial management and property of the ward.
• Responsible for making decisions about the ward’s assets and finances.
• Manages property, investments, and other assets of the ward.
• Must file an annual account with the court.

Guardian of the Person

• Focuses on the personal care, well-being, and health of the ward.
• Responsible for making decisions about the ward’s living arrangements, healthcare, and personal needs.
• Makes decisions about the ward’s daily life and care, such as medical care and housing.
• Must file an annual report on the ward’s well-being and care.

 Contested Guardianship

A guardianship can be contested when there is disagreement or dispute over the need for a guardianship, the suitability of the proposed guardian, or the scope of the guardian’s authority. Guardianship cases are often emotional and complex, especially when they involve vulnerable individuals such as elderly adults with diminished capacity or minors whose care is in question. There are several circumstances in which a guardianship might be contested, and these disputes can arise from various factors, including concerns about the ward’s best interests, accusations of undue influence, or the appointment of an inappropriate guardian.

 Common Circumstances Where a Guardianship May Be Contested

1) Dispute Over the Need for Guardianship

A guardianship can be contested if family members or other interested parties believe that the proposed ward does not need a guardian or that they are capable of managing their own affairs.

• Capacity Issues: One of the most common reasons a guardianship is contested is if the proposed ward has the mental or physical capacity to make decisions independently, but others believe they do not. For example, an adult may be elderly but still mentally competent to make decisions about their finances and personal care. If a family member or friend disagrees, they may contest the guardianship by arguing that the ward does not need a guardian.
• Alternatives to Guardianship: Contestants may argue that there are less restrictive alternatives to guardianship available, such as a power of attorney, a trust, or other forms of supported decision-making, which could allow the ward to maintain their autonomy.

2) Dispute Over the Appointment of the Proposed Guardian

A guardianship may also be contested based on the suitability of the proposed guardian. Family members or other interested parties might believe that the person nominated to serve as guardian is not appropriate for the role, either due to a conflict of interest, lack of capability, or prior behavior that raises concerns.

• Conflict of Interest or Bias: A proposed guardian may have a conflict of interest or ulterior motives that would prevent them from acting in the best interests of the ward. For example, if the proposed guardian stands to inherit the ward’s estate or has a personal financial stake in the ward’s decisions, other family members may challenge their appointment.
• Questionable Character or Behavior: A proposed guardian may have a criminal history, history of substance abuse, or evidence of inappropriate behavior that would make them unsuitable to care for the ward. For example, a family member who has a history of financial mismanagement may be challenged for being appointed as guardian of the estate.
• Incapacity of the Proposed Guardian: If the proposed guardian is not physically or mentally capable of managing the ward’s affairs, other parties may contest their appointment. This could apply if the proposed guardian is elderly, ill, or unable to carry out the duties required of them.

3) Disagreement Among Family Members or Heirs

In cases where multiple family members are involved, there may be disputes over who should be appointed as guardian. Family dynamics can play a significant role in contested guardianships, especially in situations where there are multiple heirs or relatives who disagree on how the ward should be cared for or who should have control over the ward’s property and well-being.

• Sibling Disputes: In families, siblings or other relatives may argue over who should be appointed guardian of a parent or other relative. One sibling may feel they are better equipped to serve as guardian, while others may believe their appointment would be more in the ward’s best interest.
• Conflict Over Caregiving: Family members may contest a guardianship based on differing opinions about what is best for the ward’s care. For example, one relative might believe the ward should be placed in a nursing home, while another believes they should remain at home with support.

4) Incapacity or Death of the Guardian

If a guardian becomes incapacitated or dies during the guardianship, a dispute may arise over who should be appointed as the new guardian. This could be contested if the ward or interested parties have concerns about the proposed replacement, such as questions about their ability to handle the guardianship or concerns about their motives.

At Baxter-Thompson Law, we have experience and knowledge to represent you in contested guardianship proceedings.  Ms. Baxter-Thompson has been a presented at various advanced guardianship seminars across the State of Texas.  She is also appointed by various Probate Courts to serve as Guardian of the Estate for Ward’s living in North Texas.