Legal Solutions

What is the difference between elder and child guardianship?

On Behalf of | May 22, 2023 | Elder Law

Guardianship is not the only option for helping an elderly person who needs assistance. There are other alternatives that may be less restrictive, less costly and more respectful of the person’s rights and preferences.

In fact, Texas law requires that guardianship be used only as a last resort, and that the guardian’s authority be limited to the extent necessary to protect the ward’s best interests. This is why there are some key differences between Texas elder guardianship and child guardianship.

Adult guardianships

If you have an elderly parent or relative who is no longer able to care for themselves or manage their own affairs, you may wonder if you need to seek guardianship for them. Guardianship is a legal relationship that allows one person (the guardian) to make decisions and act on behalf of another person (the ward) who is incapacitated due to age, illness, injury or disability.

Guardianship can provide protection and support for adults who need assistance with their daily living, health care, finances or property.

What are the main differences?

One of the main differences between Texas elder guardianship and child guardianship is the definition of incapacity. For an adult to be considered incapacitated, they must have a physical or mental condition that prevents them from providing food, clothing or shelter for themselves, caring for their own physical health or managing their own financial affairs.

For a child to be considered incapacitated, they must be under 18 years old and not emancipated by marriage or court order.

Another difference is the process of appointing a guardian. For an adult, a court must find clear and convincing evidence that the person is incapacitated and that there are no less restrictive alternatives to guardianship. The court must also appoint an attorney ad litem to represent the person’s interests and a guardian ad litem to investigate the person’s circumstances and report to the court.

The person has the right to attend the hearing, present evidence, cross-examine witnesses and request a jury trial. The court must also consider the person’s wishes and preferences when appointing a guardian.

A third difference is the duration of guardianship. For an adult, guardianship lasts until the person dies, regains capacity or the court terminates or modifies the guardianship. The guardian must file annual reports on the person’s condition and well-being, and annual accountings on the person’s finances and property.

The court may also conduct periodic reviews to ensure that it is still necessary.