Guardianship is the process in which a Court appoints one or more persons to have the rights and duties to make decisions for an individual who is a minor, or a person who has physical or intellectual disabilities which prevent that person from managing his or her life. A person who requires a guardianship is referred to as a Ward, and the person who is appointed as the Ward’s Guardian, is either a Guardian of the Ward’s Person or Guardian of the Ward’s Estate, or both. A Guardian of the person of the Ward has the authority and responsibility to make decisions for the Ward (for example, where the Ward should reside and what medical care the Ward should receive). A Guardian of the estate of the Ward makes financial decisions for the Ward (for example, managing the Wards property and filing taxes for the Ward). A Guardian is deemed to be a fiduciary of the Ward, and therefore must be a person of good moral standing. Being a Guardian of the Ward’s Person and/or Guardian of the Ward’s Estate entails distinct legal duties and obligations toward the Ward. The Texas Estates Code requires that any applicant who seeks to be appointed as a Guardian must prove to the Court that there are no legal alternatives or services (for example, powers of attorney) that can support the proposed Ward’s daily needs short of a Guardianship. Therefore, prior to applying to be appointed as a Guardian over a proposed Ward, it is important that family members or concerned individuals considering whether a guardianship is necessary consult with an attorney who can assist the family to address these issues and implement a family care plan for the individual in need of care.
As we age, we must be cognizant of our ability to provide for our long-term care and have a contingency plan in place for the possibility that the cost of our long-term care may exceed our ability to afford such care. Whether as a single individual or as a married couple, it is never too early to think about these life situations and plan ahead if you or a loved one is facing a high probability that long-term care will be required in the next five to ten years. There are many options for providing for long term care, such as long term care insurance, self-pay and governmental benefits. The only Federal agency that covers long-term care is Medicaid; however, prior to applying for Medicaid, there are strict requirements that need to be met before the applicant will be accepted as a Medicaid recipient. Thus, engaging an attorney who knows how to assist you and your family in planning for Medicaid benefits prior to needing such benefits can help avoid common mistakes that can disqualify the applicant from receiving Medicaid benefits; or avoid unnecessary spend-down of the applicant’s or family assets that may be preserved for supplemental care. There may be other benefits that are available depending upon the applicant’s status, such as a veteran, or spouse or dependent of a veteran.