In today’s world, it has become increasingly common for families to face the situation of having to take care of an elderly family member. While modern medicine has made great strides in allowing people to live longer, conditions such as Alzheimer’s and dementia have become more and more common. For adult children, it can seem unnerving to now have to care for your parent’s legal and financial interests. Similarly, some families are faced with a situation of having to care for someone who has suffered a brain injury.
In such cases, it often becomes advisable and even necessary to establish a Guardianship over that family member. A Guardianship has the effect of transferring certain rights from the family member with the diminished mental capacity to another individual. To establish a Guardianship, an application must be submitted to a court and the court must then determine if a Guardianship is necessary and if so, what rights should be transferred.
Guardianships are designed to protect these vulnerable individuals from being taken advantage of and having their assets stolen. Fortunately, you can protect your loved one by obtaining guardianship responsibilities over them. At Silvas & Routzon, we can assist you in obtaining the necessary guardianship rights and responsibilities.
For families with young children it is particularly important to provide a guardian for their minor children in the event both parents die. For example, given how crowded the roads of our Metroplex are, it is not hard to imagine a husband and wife with two young children, ages 5 and 3 becoming involved in the tragedy of a fatal car accident. Both parents had a Will, but the Wills were created before the children were born, so there is no provision for a guardian for the children. The father had a sister and a brother and the Mother had three sisters, one of whom she had not seen for many years prior to the accident. All five siblings might be equally qualified, and all might want to act as guardians. Before you say this would never happen, it has, and it will again. Every year hundreds of children are left parentless and in need of having a guardian appointed for them.
In Texas, the Texas Guardianship Code governs the appointment of a guardian where there is either no Will or there is a Will, but no designation of a guardian (or a named guardian has declined to serve). The list begins with any surviving grandparent, followed by a sibling of the decedent, following by any other qualified relative or interested person. There is no preference for one sibling over another (that is, the mother’s siblings are no more preferred than the father’s siblings). The guiding direction for the court is that any appointment MUST be in the child’s best interests. The court typically makes this determination with the help of a guardian ad litem.
“Best interests” is not defined by the Guardianship Code. Thus, the Court will typically look at all the circumstances, such as the living conditions of any proposed guardian, previous relationships between the proposed guardian and the minor children (how often did Uncle Bill visit with the children? were the visits positive ones?), home stability, other children of the proposed Guardian, and other related matters.
The problem, of course, is that the children may wind up with people that the parents would never have considered as guardians for the children for one reason or another. But because they never put their wishes down in writing, the children may ultimately suffer the consequences. By naming a guardian in your Will, you can remove this potential problem and provide peace of mind for yourself as well as your loved ones.
At Silvas & Routzon, we understand that this is sometimes a difficult decision to make. We provide you with insight and advice and are here to assist you in providing for your children should such a tragedy ever occur.