Guardianship or Power of Attorney?

Conversations with parents frequently start with this question, followed by various concerns they have about getting guardianship and then concerns about not having it.

The thing to remember about this question is that it is not a choice the parents make.

Guardianship is for individuals who do not have the capacity to properly care for themselves.

Texas law defines lack of capacity in the context of guardianship as “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.”

If your child meets this definition in one or more areas, then a guardianship is needed so that someone has the legal authority to do the things your child cannot.

If your child does NOT meet this definition, then guardianship is not appropriate no matter what the parent prefers.

That said, there are some individuals for whom it is difficult to say clearly one way or another whether they have capacity. But for most, there are few, if any, questions about their ability.

It’s very important for parents to understand that if their child does in fact need a guardian, but the child is still developing, at some point guardianship may no longer be necessary. This is not a lifetime decision. If your child is able to care for himself or herself at a later age, the guardianship can and should be removed. But a failure to appoint a guardian at 18 simply because of a possibility that it will not be needed later in life can put the child’s safety at risk.