Although a guardian steps into the shoes of the person being protected by a guardianship. At the same time, the guardian is required to promote the independence of that person to the greatest degree possible. Guardianship is awarded on a year-to-year basis after the guardian has proven that they have fulfilled their duties for the previous year.
What are the Differences Between a Guardian of the Person and a Guardian of the Estate in Texas?
A guardian of the person and a guardian of the estate have different authority and different responsibilities.
What Does a Guardian of the Person Do?
A guardian of the person has authority, and is responsible for, medical decisions, deciding where the person should live, and promoting their personal and social life, including, if necessary, filing an Application for a Temporary Restraining Order to bar contact from someone who has exploited them in the past.
- A guardian of the person is required to visit at least four times per year.
- A guardian of the person can manage the person’s Social Security benefits and up to $20,000 in other funds.
- A guardian of the person must be bonded (insured). If there is no estate, a one-time premium can be paid.
- Every year a guardian of the person must file with the Court a Report on the Condition and Well-being of the Ward, attaching a report on how the Social Security benefits have been spent. This can be done directly. No attorney is needed.
- A guardian of the person is entitled to a monthly payment from the person’s Social Security benefit.
What Does a Guardian of the Estate Do?
A guardian of the estate has authority, and is responsible for, financial decisions and can, if needed, apply for Medicaid and other public benefits for which the person is eligible.
- A guardian of the estate is not expected to spend money other than the money of the person under guardianship.
- Sometimes, particularly when the estate is that of a minor, the guardian may apply to the Court to create a management trust to invest and manage the money.
- Within 30 days following appointment, a guardian of the estate must submit an Inventory to the Court.
- Every year, the guardian of the estate must submit, via an Approved Guardianship Attorney, an annual accounting with a copy of all bank and brokerage and credit card statements, invoices and receipts. The best practice is to create monthly accountings: any missing receipts or discrepancies can more readily be addressed and preparing the annual accounting will be less of a burden.
- Upon approval of the annual accounting, a guardian of the estate is entitled to a commission in the amount of 5% of the income earned and 5% of the distributions made that year.
Additional Resources for the Guardianship Journey:
What is Guardianship?
Seeking Guardianship Part 1: Applying – How to Apply for Guardianship in Texas
Seeking Guardianship Part 2: Who Should Apply – Who Can Be a Guardian in Texas?
Seeking Guardianship Part 3: After the Application – What Happens After You File for Guardianship in Texas?
Elder law attorney, Terry Garrett, CELA, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
