Guardianship and Alternatives
Do you have a loved one who is incapacitated due to age, mental incapacity, or other disability? Is a guardianship the right thing for them?
Many options are available for disabled loved ones. Caperton Walling Law Firm, PLLC helps you identify and choose the right ones for your family situation. Sometimes, guardianship is the best option, and Kelly Walling helps families put that into place when needed.
What is Guardianship?
When it comes to caring for a loved one who is no longer able to make decisions on their own, legal guardianship is often seen as the best option. In Texas, there are other alternatives available that may be more suitable in certain circumstances. These include conservatorship and power of attorney (POA).
It’s important to understand the differences between these options and when each might be appropriate. This article provides an overview of guardianships and alternative forms of care under Texas law, including information about obtaining guardianship, rights granted by being a guardian, and other considerations when making this important decision.
Why Choose Guardianship?
The legal process is designed to protect incapacitated vulnerable individuals from exploitation, self-neglect, abuse, or neglect by others. It is a loving way to provide for the individual’s care and financial management while preserving as much of their independence as possible and allow them to still make some decisions about things affecting their life.
Kelly Walling educates clients about the responsibilities of being a guardian. This way they can fulfill their role without fear or worry. Often people with disabilities also require special needs trusts. Caperton Walling Law Firm, PLLC creates these for you as well, so everything you need is in one place.
- Permanent and Temporary Guardianships
- Alternatives to Guardianship
- Pre-guardianship Planning
- Modification, Restoration, and Termination
Caperton Walling Law Firm performs legal services for clients in and around Argyle, Bartonville, Bedford, Carrollton, Colleyville, Coppell, Copper Canyon, Dallas, Denton, Double Oak, Euless, Flower Mound, Fort Worth, Grapevine, Hickory Creek, Highland Village, Hurst, Irving, Justin, Keller, Lake Dallas, Lantana, Lewisville, Little Elm, Marshall Creek, Minters Chapel, North Richland Hills, Roanoke, Southlake Trophy Club, The Colony, and Westlake.
What Are Alternatives to Guardianship?
In Texas, there are certain alternatives to legal guardianship that can be used in place of or in addition to appointing a guardian for an incapacitated person. These alternatives include conservatorship, power of attorney, and representative payee. Each of these can help ensure the care and well-being of a disabled person, while at the same time allowing them to maintain as much independence as possible.
Six Month Temporary Guardianship (for minor children)
Under Texas law, a Six-Month Temporary Guardianship can be awarded for minor children. This type of guardianship typically lasts for six months and is often used when the parents are unable to provide care due to work or other commitments. During this time, the guardian takes over responsibility for the child’s day-to-day decisions while also being responsible for providing adequate care and protection.
Options for Children with Disabilities Approaching Adulthood
For disabled children who are approaching adulthood, there may be other options available for providing care and support. In some cases, the parents or guardians can establish a special needs trust to ensure that the individual’s financial, medical, and living needs are taken care of even after they turn 18. Additionally, a guardian ad litem (GAL) can be appointed to represent the disabled individual in court proceedings and other matters.
No matter which option is chosen, it’s important that everyone involved is aware of their rights and responsibilities so that the disabled person receives the care they need while still maintaining as much independence as possible. Guardianship and alternative forms of care can provide an invaluable service to persons unable to care for themselves. With the right guidance and understanding, these legal tools can ensure that the person involved is provided with a safe and secure environment while preserving their autonomy.
Adoption (for minor children)
For minor children, adoption is another option for providing legal guardianship in Texas. This type of guardianship conveys all the rights and responsibilities that a parent would have over a child including custody, control, and authority. Adoption can be open or closed (in which case identifying information about the biological parents may be kept confidential). Furthermore, adoptive parents may be able to qualify for additional financial assistance and other benefits to help with the costs associated with adoption.
Supported Decision-Making Agreement
Supported decision-making is a form of alternative guardianship in which an adult with disabilities can appoint someone to help them make decisions on their behalf. A supported decision-making agreement is a legally binding document that allows for the appointment of a trusted person to provide assistance when needed, but does not give up any control over decisions or decision-making authority.
Durable Power of Attorney
Durable Power of Attorney is a legal document in which one person (known as the “principal”) appoints another person (the “agent”) to act on their behalf in certain defined matters. The agent can only act within the scope of the power granted and must always act in the best interests of the principal. This option can be used to provide someone with assistance in decision making, however, it does not allow for total control over the principal’s decisions or authority.
Durable Power of Attorney for Health Care Decisions
A durable power of attorney for health care decisions (DPOA HCD) is an important legal document that allows a person to appoint someone else to make health-related decisions on their behalf in the event that they become incapacitated due to illness or injury or are otherwise unable to make those decisions themselves.
The DPOA HCD can be used to appoint someone to make decisions related to medical care, end-of-life care, and other health issues. This document does not give the appointed person control over all aspects of the principal’s life or assets; rather, it is limited to making decisions only in the areas specified within the document.
A revocable trust is an important legal document that allows a person to appoint someone else to manage their assets. This type of trust enables the trustmaker (also known as the grantor or settlor) to maintain control over the assets while also ensuring that they will be managed as specified in the trust agreement.
The revocable trust gives the trustee (the person appointed by the grantor) the ability to manage and distribute assets according to the wishes of the grantor. This type of arrangement is often used in lieu of a guardianship or conservatorship as it allows for more flexibility and control over decision making and asset management.
Special Needs Trust
A special needs trust is a legal document that allows individuals to provide financial support for persons with disabilities without affecting their eligibility for government benefits. This type of trust can be established by the disabled individual themselves, or by parents, grandparents, relatives, or friends. The primary purpose of a special needs trust is to ensure that the beneficiary of the trust has access to necessary resources while also preserving their eligibility for government benefits.
Advanced Directive for Psychiatric Care
Advanced directive for psychiatric care is a legal document that allows individuals to express their wishes regarding mental health treatment in the event they become unable to make those decisions themselves due to illness or injury. This document must be signed by both the individual making the advance directive and a witness and should be kept in a secure place where it can be easily accessed if needed.
A living will is a legal document that allows individuals to express their wishes regarding end-of-life medical care in case they become unable to make those decisions themselves due to illness or injury. This document gives individuals the ability to instruct medical professionals on how they would like to be cared for in the event of a terminal condition, severe disability, or other life-threatening illness.
A living trust is a legal document that allows an individual to place their assets in a trust for the benefit of their beneficiaries in the event of their death. It is important to note that, unlike a will, a living trust allows the trustmaker to retain control over their assets while they are alive. The trustmaker creates the living trust and appoints a trustee, who is responsible for managing and distributing the assets according to the terms of the trust agreement.
Social Security Representative Payee
A Social Security representative payee is an individual or organization appointed by the Social Security Administration to manage and distribute benefits for another person who is unable to do so. This type of arrangement can be used in lieu of guardianship as it gives the appointed individual control over certain decisions such as how the beneficiary’s monthly benefits are spent. The appointed payee is also responsible for filing reports and making sure that the beneficiary’s funds are being used as intended.
Vulnerable Adult Protection Order
A vulnerable adult protection order is a court order that allows an individual to petition the court for an order of protection on behalf of a vulnerable adult. This type of order can be used to prevent physical or financial abuse, neglect, and exploitation by appointing a third-party to manage the affairs of the vulnerable adult. A vulnerable adult protection order can also be used to prevent the vulnerable adult from being removed from their home, transferred to a nursing home, or otherwise taken advantage of.
An educational representative is a legal guardian or other appointed individual who can legally represent a minor in school-related matters, including enrollment, discipline, and other related issues. This type of arrangement may be necessary if the minor’s parent or legal guardian is unable to attend meetings or events due to work commitments, illness, or any other reason. The educational representative is responsible for making decisions that are in the best interest of the minor and ensuring their rights as a student in accordance with state and federal laws.
It is important to note that while these are viable alternatives to guardianship, they do not provide the same level of protection and control as a legal guardianship does. If you have any questions about guardianships or alternatives under Texas law, it is best to consult an experienced guardianship lawyer for advice and assistance.
Have questions about guardianship and alternatives contact one of our attorneys at Caperton Walling Law Firm.
The process of obtaining guardianship in Texas is a complex one, and it is important to understand the differences between guardianship and alternatives before making any decisions. An experienced attorney can help you weigh all of your options so that you can make an informed decision about which guardian arrangement or alternative is right for you and your loved ones.
At Caperton Walling Law Firm, we are dedicated to providing our clients with the knowledge and resources they need to make informed decisions about guardianships and alternatives under Texas law. We can help you understand the differences between guardianship and alternatives, such as conservatorship and power of attorney, and guide you through each step of the process. Contact us today so that we can help you find the best guardianship or alternative arrangement for your family.