Many people do not have a clear understanding of guardianship, of when it is appropriate and what it can and cannot provide.
What is Guardianship?
The purpose of guardianship is to protect someone and protect their right to life, liberty and the pursuit of happiness by, perhaps counter-intuitively, transferring some of their civil rights to a guardian of their person and, if they have more than $20,000 (2026) their estate.
When Guardianship is Appropriate
A person is a candidate for the protection of a guardianship if, due to a mental or physical condition, they are unable to manage their finances or unable to provide for their own food, shelter or medical care. This must be attested to by a physician (or by an advance nurse practitioner supervised by a physician) in a Healthcare Provider’s Certificate of Medical Examination.
If the person has a Medical Power of Attorney, naming someone to voice their wishes when they cannot communicate them, and a Durable Power of Attorney, authorizing someone to access funds to pay for their care, they may not need a guardian.
If the person has a Revocable Living Trust which provides for a corporate trustee or another individual (typically their spouse) to manage their funds when they are no longer interested or able to do so (or refuse to have their mental capacity evaluated by a doctor), again they may not need a guardian – particularly if their Revocable Living Trust authorizes the trustee to hire a geriatric care manager to direct their care.
When Medical and Durable Power of Attorney or a Revocable Living Trust is Not Sufficient
But sometimes the combination of a Medical and Durable Power of Attorney or the existence of a Revocable Living Trust is not sufficient.
A Medical Power of Attorney only comes into play if the person is unable to communicate their wishes. It does not override the person’s wishes. It does not allow the agent to require accepting home health and other services or to determine that the person will move to enter a facility.
A Durable Power of Attorney only gives equal access to the person’s funds. It does not prevent them from impoverishing themselves whether by charitable giving, frequent purchases, or falling for scams.
Similarly, not all Revocable Living Trusts require that a person, within a certain time of being asked to do so, have their mental capacity evaluated or transfer authority to manage the trust. Not all Revocable Living Trusts provide for a geriatric care manager or someone else to advise on the person’s needs. None can force the person to allow home health in or to move to a facility.
In these circumstances, it is necessary to ask a Court to place the person under the protection of a guardianship.
What Guardianship Can and Cannot Provide
But while a Court-appointed guardian can manage the person’s funds, make medical and residential decisions, there are limits, both legal and practical. In Texas, a person can only be placed under the protection of a guardianship if supports and services, such as Powers of Attorney, a bill paying service and accepted directed care, are insufficient.
- A guardian can restrict contact with the person but only contact from those who have been shown to have abused, neglected or exploited them.
- A guardian can move someone to a facility but cannot involuntarily commit them to a psychiatric hospital: only a Court can do that.
- A guardian can agree to medical treatment, but cannot force someone to swallow a pill or talk to a therapist.
Whether guardianship is needed or will protect the person from themselves or others varies from person to person.
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.
