Guardianships & Wills: What is the Difference Between the Guardianship of a Person and an Estate in Texas?

Guardianships and Wills serve different functions in Texas, although there is some overlap between these concepts. They both deal with decision-making power, and these decisions may involve both medical and financial matters. If you are trying to decide between guardianship and estate planning tools, you may have a loved one who is incapacitated. How can you protect them and guide them toward security? Should you choose a guardianship or an estate planning tool?

The Garza Law Office, PLLC, can help answer these complex family questions. Established in 2015 by an experienced family law and estate planning attorney Dora Alicia, this family law firm has guided numerous families in Texas toward positive outcomes. We know how difficult it can be to address mental or physical incapacitation among your family members. Dora Alicia graduated from St. Mary’s University, and she has considerable experience with both guardianship and wills. Speak with this family and estate planning lawyer today to learn more about both options.

Both Guardianship and Estate Planning Can Help Incapacitated Loved Ones

Guardianship and estate planning can both help families who wish to care for incapacitated loved ones. However, the two methods accomplish this goal through different means.

In the context of estate planning, families may establish powers of attorney to care for incapacitated loved ones. Once the loved one becomes incapacitated, a predetermined “agent” becomes responsible for making decisions on their behalf. These decisions may involve both medical and financial matters.

Perhaps the most important detail of a power of attorney is its “proactive” function. For this strategy to be effective, a family must create a power of attorney before the loved one becomes incapacitated.

In contrast, guardianship occurs after the loved one becomes incapacitated. Often, this is due to an unexpected turn of events – such as early-onset dementia or a catastrophic car accident injury.

Which is Easier: Guardianship or a Power of Attorney?

Generally speaking, proactive strategies are always more effective than “reactive” strategies. As a result, a power of attorney can lead to easier oversight and control of a loved one’s affairs compared to guardianship. As long as this estate planning document has been properly drafted, it should be approved – and the agent can begin making important decisions almost immediately.

In contrast, guardianship is a more complex legal process. Families must petition for guardianship – and approval is not guaranteed. Perhaps most notably, courts pay close attention to the best interests of the ward (the incapacitated person). Their goal is to consider whether or not the ward is truly incapable of making their own decisions – and whether a less drastic approach may be more suitable.

Even after guardianship has been granted, decisions are still subject to court oversight. In contrast, an agent is relatively free to make decisions on behalf of the incapacitated individual without much oversight.

Which Option Should I Choose?

If your loved one is still capable of making their own decisions, a power of attorney is the most logical option. This may be particularly useful if you believe your loved one will become incapacitated in the near future. Perhaps your loved one is approaching their twilight years – and they are beginning to show subtle signs of dementia, Alzheimer’s, or general senility.

That being said, virtually anyone can benefit from a power of attorney – regardless of their age or medical condition. An incapacitating injury or disease can strike when you least expect it –  and a power of attorney can be a viable choice for any estate planner.

In contrast, guardianship is effectively the only choice if your loved one has become incapacitated without first establishing a power of attorney.
Depending on the circumstances, the final decision may be taken by an individual facing future incapacitation, a concerned relative, or the entire family. With a power of attorney, the individual can decide who will act in their best interests. With a guardianship, this decision is made by the court – and it may not necessarily align with what the ward would have wanted.

Contact an Established Family Law Firm in Texas

The subtle differences between guardianship and wills can be confusing – and internet research may only get you so far. To explore this complex concept in more detail, consider speaking with an experienced family law and estate planning attorney – such as Dora Alicia. The Garza Law Office, PLLC is an ideal starting point for any family who wants to discuss estate planning, guardianships, conservatorships, and other related concepts. Call (956) 329-1304 to continue this conversation alongside an experienced family and estate planning lawyer.

Dora Alicia Garza

Dora Alicia Garza is a seasoned attorney based in Texas and the Founder of Garza Law Office, PLLC. She has built a respected practice across multiple areas of law, including criminal defense, family law, personal injury, guardianships & wills, estate planning & probate, immigration, debt defense and juvenile law. Learn more here.