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Guardianship Attorney Houston

What is a Guardianship?

A guardian is an individual assigned by the court. When an incapacitated person or minor needs representatives to oversee their personal affairs or finances, the court, if not designated by another writing (such as a will or codicil), will select an individual to oversee such issues. A guardian may either serve in a full or limited capacity, depending on the circumstances.

Who is an incapacitated person?

Texas defines an incapacitated person as “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs; or a person who must have a guardian appointed to receive funds due the person from any governmental source.”

A proper estate plan is imperative, because once someone is deemed incapacitated, if they have not executed a financial or medical power of attorney or executed a Declaration of Guardian, a court will appoint a guardian to make medical decisions and a guardian of the estate to make the financial decisions.

Guardianship and Custodianship for minors

Because minors cannot contract, if there is property in their name, they cannot manage or sell it, or buy securities. In such instances, a guardian will be appointed to manage the property. Additionally, it is important to have a guardian in a minor is named in as a beneficiary of a life insurance policy, because many insurance companies will not disburse funds until there is a guardian appointed.

Unlike a guardianship, in a custodianship, the planner can either choose the custodian herself or have the trustee choose the custodian, without worrying about the court appointing someone. Under the Texas Uniform Transfers to Minors Acts (TUTMA), the custodian has the authority to manage the property on behalf of a minor beyond the age of 18. A custodian arrangement can be very convenient for handling small amounts of property or for parents who want to use the annual gift tax exclusion until the child turns 21.

Guardianship vs. custodianship or trust

However, a guardianship or custodianship is usually a last resort. Because a guardian must be supervised by the court and cannot be waived by anyone, such arrangements can be time-consuming, and a conservator or a trust may be more appropriate. It is important to realize that a guardianship ends once the child turns 18, and she will be able to have complete access and control of the funds. A guardianship can usually be avoided by proper financial planning, and many people favor a custodianship or a trust. A custodianship or trust may be more appealing because it allows you to extend the age at which the child gains full control of the money or property.

Contact An Experienced Guardianship Attorney Today