This is a high-level overview, brief, and informational article about the statutory rights and requirements of a guardian of the person and guardian of the estate.
Guardian of the Person.
Generally, the guardian of the person of a ward is entitled to take charge of the person of the ward. The “person” – an important legal, if not philosophical concept. The duties of the guardian of the person correspond with the rights of the guardian, also a “person.” But, guardians of the person must act, always, in the best interest of their ward and with a high degree of fiduciary responsibility when making final decisions for the ward.
The Texas Estates Code lists select duties of the guardian of the person. Below is a non-exclusive list of those duties owed to the “person” of the ward, including (1) the duty to provide care, supervision, and protection for the ward; (2) the duty to provide the ward with clothing, food, medical care, and shelter; and (3) the power to consent to medical, psychiatric, and surgical treatment other than the inpatient psychiatric commitment of the ward. See Tex. Estates Code § 1151.051(a)-(c)(8).
Guardian of the Estate.
When establishing a guardianship, a court will many times restrict the ward’s contractual rights by granting contract- or financial-related decision-making authority to the guardian. For guardians of the estate of a ward, the guardian is entitled to, among other things: (1) possess and manage property belonging to the ward; (2) collect all debts, rentals, or claims that are due to the ward; (3) enforce all obligations in favor of the ward; and (4) bring and defend suits by or against the ward. See Tex. Estates Code § 1151.101(a)-(a)(5).
“The guardian of the estate shall take care of and manage the estate as a prudent person would manage the person’s own property, except as otherwise provided by this title.” Id. at § 1151.151(a).
With respect to certain actions that are to be taken on behalf of a ward, the guardian of the estate, on written application to the applicable court, may take if: (1) the guardian considers the action in the best interests of the estate; and (2) the action is authorized by court order. Id. at § 1151.102(b)-(b)(2). Those court-approved actions are contained in Subsection (c) of Section 1151.102 of the Texas Estates Code. The actions include action to “make a compromise or a settlement in relation to property or a claim in dispute or litigation[.]”
Section 1151.103(a) of the Estates Code provides a list of actions of a guardian of the estate that do not require court approval. Even if the action is performable without court order, Section 1151.103(b) provides that “[a] guardian of the estate may apply and obtain a court order if the guardian doubts the propriety of the exercise of any power listed in Subsection (a).” See id. at § 1151.102(a)-(b) (emphasis added).
Court Orders and Rights Retained by the Ward.
Each guardianship may have additional or different duties listed in the applicable court order. Careful consideration should be given to the scope and contours of the applicable court-ordered authorization granted to the fiduciary-guardian. Under the Estates Code, “[a]n incapacitated person for whom a guardian is appointed retains all legal and civil rights and powers EXCEPT those designated by court order as legal disabilities by virtue of having been specifically granted to the guardian.” Id. at § 1151.001 (emphasis added).
Section 1151.351 of the Estates Code lists the rights (26 in total) guaranteed to a ward who is subject to a guardianship, which rights may be changed only if designated by court order. See, e.g., id. at § 1151.351 (Bill of Rights of Wards). Each of those legal and civil rights should be reviewed early and often by a guardian of the person or the estate to ensure that, whatever decision – legal or otherwise – is made on behalf of the applicable ward is authorized within the guardian’s fiduciary obligations.
Insights.
Each guardianship situation may have additional, limited, or different duties of guardian listed in the applicable court order. And, there is a statutory distinction between guardian of the person and guardian of the estate. If a person is guardian of the person only, then the guardian’s authority may be limited or, in regard to a contract or transaction proposed for the ward’s behalf, may be improperly exceeded by the guardian’s acceptance of the applicable terms.
Because of these statutory and court-ordered fiduciary obligations, guardians who are presented with a contract or other transaction to sign on behalf of a ward should consider whether court approval is necessary or advisable for the guardian to accept and sign the terms on behalf of the ward. If authorization to contract for the matter covered by the terms presented is not expressly stated in an applicable order of guardianship, then it is usually best (in this practitioner’s opinion) to request and obtain court approval to proceed.
But, it is, as it always is, each individual guardian’s decision, with or without legal counsel, to make an independent determination on the guardianship matter.
