In this episode, Houston partner Kathleen Tanner Beduze walks through the different types of guardianships, how they work, and what people can do today—when they are healthy—to avoid having others decide who will have power over their medical or financial decisions.

Episode Transcription

Courtney White: Hi, everyone. I am Courtney White, and this is Jackson Walker Fast Takes. 2034 will mark the first time in U.S. history that people 65 years of age or older outnumber children 18 years or younger. Currently, 6.7 million Americans over 65 are living with Alzheimer’s, and this number is likely low, as many are still reluctant to report symptoms. More people die of Alzheimer’s than breast cancer and prostate cancer combined, and the lifetime risk for Alzheimer’s at age 45 is one in five for women and one in 10 for men. This changing dynamic means that conversations on estate planning and guardianship are critical. Today, my colleague Kathleen Beduze, a partner in our Houston litigation section, will give us all a lesson in guardianship 101.

Kathleen, thank you for joining the podcast today.

Kathleen Beduze: Thank you for having me on today. I look forward to visiting and hope that our conversation helps someone navigate the judicial system if the need arises, or in the future, or to avoid a guardianship in its entirety.

Courtney White: So, that leads me into my first question: What is a guardianship?

Kathleen Beduze: A guardianship is a court-supervised procedure where one person is granted the legal authority to make personal or financial decisions for someone else who can no longer make the decisions for themselves. The person who is appointed as a guardian can either be a guardian of the person, which is who would be in charge of the food, shelter, clothing, and medical care decisions, or a guardian of the estate, who is tasked with making the financial decisions for the incapacitated individual. One single person can serve as both the guardian of the person and the guardian of the estate, or it can be two separate people, but you cannot serve as a co-guardian of the person or the co-guardian of the estate.

There are two different types of guardianships: temporary and permanent. A temporary guardianship is just as it sounds, it’s temporary. It’s a temporary solution to protect an individual who is alleged to lack capacity. In a temporary guardianship, there’s no legal finding of incapacity, but you must present sufficient evidence to the court of the incapacity, and you must show that there’s imminent danger to the proposed ward’s person or a state the need for the temporary guardianship to be put in place. A permanent guardianship is the permanent finding of incapacity by a judge. This is where a court will remove the rights of a proposed ward, because the rights or property of the ward will be protected only by the appointment of a guardian. It is a full trial, and the court will consider the ward’s preferences regardless if a designation of guardian is signed, which we’ll discuss later on the podcast.

Courtney White: Thank you for that thorough answer. So, that leads me into my next question: When would someone need a guardianship?

Kathleen Beduze: So, a guardianship is needed when an incapacitated individual exists. So, it’s either an adult (over 18), so an incapacitated adult who does not have a power of attorney or they have a power of attorney and that power of attorney is invalid or void, or it’s a minor child (under 18), who has found a lack of capacity. You also can have a guardianship and a mental health action, or where a court creates a trust to hold assets for an incapacitated person or for a special needs child or the various mechanisms that a court can create a trust.

Courtney White: If someone finds themselves in a position or someone they know needs to get a guardianship, how do you go about obtaining a guardianship?

Kathleen Beduze: Well, you would have to hire an attorney like myself, and that attorney would file an application for guardianship in a court of proper venue and proper jurisdiction, and the proposed ward is found to be incapacitated. As I mentioned, in a temporary guardianship, which is for a very limited period of time, there is no finding of incapacity. But in a permanent guardianship, there must be a finding of incapacity. The Texas Legislature has designated less restrictive alternatives to guardianship, as well as supports and services that must be considered prior to a guardianship being granted.

Courtney White: If someone wants to avoid the process of guardianship, what can we do today to avoid having a guardianship proceed in the future?

Kathleen Beduze: Plan ahead. The most vital documents are called a power of attorney. This is where an individual today who, when they have capacity, names an individual or several individuals as backups to assist in medical or health decisions – that’s called a medical power of attorney – or financial decisions – that’s called a financial agent or an agent under a statutory durable power of attorney. The important things about a power of attorney is that they can be affected immediately or only upon a finding of incapacity, which is typically done by a doctor’s note. So, today, when you are competent, you can make those decisions for the future who you want to assist you with medical or financial decisions. What you can also do, and it’s oftentimes part of an estate plan that you may create with an estate planning attorney, is called a declaration of guardian. Just as in with a power of attorney, that allows a competent individual to name who they want to serve as their guardian in the future if the need arises.

Importantly, you can also identify individuals who you do not want to serve. There may be various reasons for why you don’t want certain individuals to serve and to take actions for you in the future when you are no longer able to take action for yourself or to make decisions for yourself. There are other items and tools that you can do to avoid full guardianship, such as joint bank accounts. You can have a convenience account where you name a family member or friend, and they can have access to the account to assist with finances, but it doesn’t give any ownerships to that person that you select. Or as we discussed earlier, a court-created Management Trust, which typically names a corporate fiduciary, so a bank, to serve as the trustee, or you can have a special needs trust, which really is centered around Medicaid concerns and eligibility and it uses the ward’s own assets to support the ward.

So, there are several different alternatives to guardianship that you can use today as tools to avoid a guardianship in the future.

Courtney White: Thank you, Kathleen for this very important discussion and for joining the podcast today.

Kathleen Beduze: Thank you so much for having me on Courtney.

For additional JW Fast Takes podcasts and webinars, visit JW.com/Fast. Follow Jackson Walker LLP on LinkedIn, Twitter, Facebook, and Instagram.

The music is by Eve Searls.

The opinions expressed do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.

Meet Kathleen

Kathleen Tanner Beduze concentrates her practice on the areas of fiduciary litigation, trust disputes, guardianship, and estate and probate-related administration. She offers experienced counsel handling prosecution and defense of fiduciary claims, will contests, accounting and administration issues, contested guardianships, and interpretation and modifications of trusts. Since 2019, Kathleen has contributed to the Texas Guardianship Manual and is a former contributing author of the Real Estate, Probate and Trust Law Reporter. She has been named among The Best Lawyers in America in the area of Litigation – Trusts and Estates since 2021 and a Texas Super Lawyer for Estate and Trust Litigation by Thomson Reuters’ Super Lawyers in 2023.