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Guardianship is a legal process in which rights are taken away from one individual and given to someone else. Guardianship is a serious legal matter and a court will not grant a guardianship if less restrictive means to help are available. A guardianship is most often needed when:
There are two types of Guardianship: Guardian of the Person and Guardian of the Estate. A Guardian of the Person takes care of the physical well-being of the incapacitated person. A Guardian of the Estate is appointed to care for the incapacitated person's property.
Guardianship of an Elderly Person: Sound estate planning will often avoid the need for a guardian in the case of elderly persons. Owning assets in a revocable living trust or designating someone to manage financial affairs in a power of attorney will usually avoid the requirement of a guardian of the estate. Likewise, designating someone to make medical decisions in a medical power of attorney may avoid a guardian of a person.
When there is no financial power of attorney or medical power of attorney or if someone is taking advantage of an elderly person, a guardianship may be necessary.
Guardianship of a Disabled Person: If assets are left outright to a disabled loved one or someone who isn't able to manage their own financial affairs, a guardianship of the estate may be necessary. Guardianship of the estate of a disabled loved one though should always try to be avoided with sound estate planning and special needs trusts.
Guardianship of the person of a disabled or special needs individual who has attained age 18 is quite common. For example, when a person with down syndrome, intellectual disability, or on the autistic spectrum attains age 18, the parents are no longer in charge of making decisions for their benefit. To ensure parents maintain legal authority to know about and assume responsibility for education, medical and living decisions, a guardianship of the person may be warranted.
Guardianship of a Minor : Parents of minor children should ensure their estate plan is set up with trusts in order to avoid a guardianship of the estate of a minor child. Unfortunately parents or grandparents too often inadvertently leave assets outright to minors. When this occurs, insurance companies and banks often require a guardianship of the estate before any payments can be made.
How we Help: The attorneys and team members at Nickerson Law Group assist families obtain a guardianship over a loved one who is incapacitated. We have assisted with guardianship cases throughout Texas, from Texarkana to El Paso; however, we primarily serve clients who live in Travis, Williamson, Hays, Blanco, Burnet and Bastrop counties. Because our firm handles a significant number of guardianship matters, we have streamlined the process and make it easy for our clients to understand all the nuances.