Declaration of Guardian

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A comprehensive estate plan includes more than a Last Will and Testament. You should also be sure to include a Declaration of Guardian in the event of incapacitation or need for a guardian of yourself. This document tells the court who you want to serve as a guardian of your estate and guardian of your person. This document also tells the court who you do not want to serve as guardian of your estate or person.

WHAT IS GUARDIANSHIP? 

A “guardian” is someone who has the authority to make legal decisions on another’s behalf (called a ward). Guardianship is a formal legal lawsuit that removes an individuals’ decision-making ability either for their person, their estate or both. It also establishes a legal relationship between a guardian and the ward to help manage his or her affairs. Typically, guardianship is established when a ward becomes incapacitated. 

An individual could become incapacitated for various reasons like Alzheimer’s disease, mental illness, memory loss or old age. An individual could even include need a guardian because they were born with or later developed an intellectual or developmental disability. 

There are two types of guardianship: 

1. Guardianship of the Person  

Guardianship of the Person allows a guardian to make decisions related to a ward’s health, housing, daily care, and other non-financial decisions. This can include: 

• Medical Treatment 
• Determining where the ward lives 
• Ensuring daily care like proper food, clothing, and shelter 
• Managing daily activities, travel, and social interaction 

 2. Guardianship of the Estate 

Guardianship of the Estate allows a guardian to manage the finances of the ward. This can include: 

• Managing income and government benefits 
• Paying bills and debts 
• Managing assets including financial assets, property, and digital assets 
• Filing tax returns on the ward’s behalf  

WHAT IS A DECLARATION OF GUARDIAN? 

A Declaration of Guardian is a proactive measure to ensure that a chosen individual can step in and manage personal and medical decisions if guardianship occurs. It is important to know that this document does not bypass the court’s involvement when incapacity occurs as a judge must appoint a legal guardian in a formal lawsuit. This document expresses your preference of who should be your guardian. 

A Declaration of Guardian also allows you to disqualify someone from serving as your guardian. If you have a family member who would make you uncomfortable serving as your guardian, you can ensure the court does not appoint that individual by expressly stating they should not serve in that capacity. 

GUARDIANSHIP VS. POWER OF ATTORNEY 

Sometimes the differences in guardianship and power of attorney can be confusing. Guardianship deems an individual as incapacitated and removes their decision-making ability. The creation of a Statutory Durable Power of Attorney or Medical Power of Attorney is a voluntary act where an individual chooses their own agent. 

Guardianship of the Person vs. Medical Power of Attorney 

• Timing: A medical power of attorney is executed while the individual still has capacity, whereas a guardian of the person is appointed by the court after capacity has been lost.
• Consent: A medical power of attorney is voluntarily granted by the individual, while a guardian of the person is appointed and overseen by the court.
• Scope of Authority: A medical power of attorney allows the agent to make medical decisions on the individual’s behalf. A guardian of the person has authority over healthcare decisions but also more personal decisions like housing, daily care and daily activities. 
• Cost and Oversight: Medical power of attorneys are generally simple, private, and less costly. Guardianships involve court proceedings, ongoing supervision, and are more expensive.
• Revocation: A medical power of attorney can be revoked by the individual as long as they remain competent. A guardianship can only be modified or terminated through court action.

Guardianship of the Estate v. Statutory Durable Power of Attorney 

• Timing: A Statutory Durable Power of Attorney is executed while an individual still has capacity, whereas guardianship is established after capacity has been lost.
• Consent: A Statutory Durable Power of Attorney is voluntarily granted by the individual, while guardianship is imposed by a court.
• Cost and Oversight: Statutory Durable Power of Attorneys are generally straightforward, private, and less costly. Guardianship proceedings tend to be more expensive and involve ongoing court supervision.
• Revocation: A Statutory Durable Power of Attorney may be revoked by the individual as long as they remain competent, while a guardianship can only be modified or terminated through court action.

For a better understanding of the legal implications of guardianship, it’s important to retain the legal counsel of an estate planning attorney experienced in drafting enforceable guardianship declarations. Our team of highly qualified lawyers has a sophisticated understanding of all matters regarding estate planning and can ensure you have all the information you need to choose guardian(s) within your estate plan.

If you need a declaration of guardianship in Katy, please contact the Hunt Law Firm at (832) 781-0320 today or fill out our online contact form for a quick reply.