Texas Guardianship Lawyers Fighting for Your Loved One’s Rights
Are you looking for a guardianship lawyer who understands the unique needs of individuals with special needs? At Shields Law in Houston, we specialize in helping families and individuals with special needs navigate the complex guardianship process. We believe that everyone deserves a voice, and we’re dedicated to fighting for your loved one’s rights.
Our experienced guardianship lawyers provide compassionate and personalized legal guidance, helping you make informed decisions about your loved one’s future. We understand that the guardianship process can be overwhelming, which is why we’re here to support you every step of the way.
Contact us today to learn more about how we can help you protect your loved one’s interests.
What is a Guardian, and Who Can Be One?
Guardianship is a legal relationship where a court appoints a guardian to have full or limited authority over an incapacitated person, based on their mental and physical limitations, to promote and protect their well-being. In limited authority cases, the court encourages the development of self-reliance and independence.
When seeking legal guardianship, the courts look to the family members before anyone else.
For proposed wards, probate courts will give preference to the following order:
- Parent
- The person, the last surviving parent, designates for guardianship
- Nearest ascendant to the child after the parents
- Relatives
- Non-relative determined by the court
To qualify as a guardian, you must meet several requirements, including completing the JBCC certificate online course, taking an oath and filing a bond with the clerk, and having it approved by the judge. While the ward has no authority to choose their guardian, the probate court considers their preference when appointing one.
What Makes a Person Incapacitated Under Texas Law?
According to Texas Estates Code, an incapacitated person is:
- A minor
- Adults who have a physical or mental condition that renders them substantially unable to make competent decisions related to personal, medical, or financial matters
- Adults who need a guardian appointed to receive funds due the person from any governmental source
These legal definitions are important in ensuring that the appropriate legal protections and support are provided to those who require them.
Can I Designate a Guardian for My Children?
You can pre-designate a guardian in the event of incapacity. In Texas, you must complete a “Designation of Guardian in Advance of Need” document. If no designation exists, the county court will appoint a guardian in the usual course.
You can also designate who you do not want to be a guardian. If you have not yet made this designation, our law firm is happy to help make sure your designation is done correctly. However, should the court find that the person designated is disqualified or would not serve the ward’s best interest, such a person cannot serve as guardian.
Remember that guardianship is a last resort for persons with significant deficits in self-care, financial matters, or medical decisions. Guardianship may be an option if a mental or severe physical disability impairs an individual’s ability to receive medical treatment or make personal and financial decisions.
How Long Does Guardianship Last?
Generally, guardians are appointed permanently unless it is one of temporary nature or when a judge decides that a guardian is no longer needed.
In these cases, a legal guardian remains in service until death, the estate is closed, or when otherwise provided by law. Guardianship may end in many circumstances, for example, when the person with incapacity dies, regains full capacity, becomes capable of caring for themselves and managing their property, or no longer needs a guardian to receive funds from a governmental source.
Limited guardianship may sometimes allow a potential ward to retain specific rights and privileges.
Filing for Guardianship in Texas
If you want to become a guardian for someone incapacitated and unable to care for themselves, you must apply for guardianship in a Texas court.
Here are the steps involved in filing for guardianship in Texas:
- Application — You can apply for guardianship in a court with jurisdiction – typically in the county where the ward resides. Your application should include information about the proposed ward and guardian, the type of guardianship you seek, and the proposed ward’s incapacity level, among other details. You must also sign and verify the application.
- Service — Before filing, you need to know who should receive notice of the application and how to serve them properly. The rules for service in probate cases are different from civil cases. An experienced guardianship lawyer can help you navigate this process.
- Getting a Physician’s Certificate of Medical Examination (PCME) — You must attach a doctor’s report from a licensed medical doctor in Texas to your application. It’s best to have a prior consultation with the doctor to work together on the report. The court has a standard form for the report, and it must be based on an examination within 120 days before filing.
- Filing — Once you have the application and doctor’s report, you can file your application for guardianship.
- An investigation by the Court Investigator — The court investigator will begin the investigation once you file your application. The court will also appoint an attorney ad litem and hold a hearing once the investigation report is ready.
- Notice to the potential ward — The proposed ward shall be served, typically by the constable.
- Appointment of an Attorney ad Litem — The court appoints an attorney ad litem to represent the legal interests of the proposed ward or advocate for the incapacitated person.
Filing for guardianship in Texas can be a complicated process. Still, an experienced guardianship lawyer can help you navigate it and ensure that the proposed ward’s best interests are protected.
Types of Guardianship: Understanding Your Options
If you seek guardianship for someone who is incapacitated, different types are available. Here’s what you need to know about the different types of guardianship.
Guardianship of the Person
Guardianship of the person means that the guardian is responsible for providing care and support for the ward’s personal needs. The guardian’s duties include advocating for the ward’s physical health and well-being, providing necessary care and protection, and making decisions about their personal affairs and medical care.
Powers and duties of a guardian of the person include:
- Taking charge of the ward
- Having the right to physical possession of the ward and establishing the ward’s legal domicile
- Providing care, supervision, and protection for the ward
- Providing the ward’s necessities
- Consenting to medical, psychiatric, and surgical treatment
Guardianship of the Estate
Guardianship of the estate means the guardian is responsible for managing the ward’s finances, assets, and property. This includes paying bills, managing investments, and making financial decisions on behalf of the ward.
Temporary Guardianship
Temporary guardianship may be appointed when there is substantial evidence that a person is incapacitated and needs immediate appointment of a guardian. In temporary guardianship, the ward retains all its rights and powers except those expressly granted to the temporary guardian.
In some cases, the court may appoint a person to be a guardian of both the person and estate, giving them full legal authority over all matters related to the ward’s care and finances. In all cases, the guardian owes a fiduciary duty to the ward, meaning that they must act in the best interests of the individual with a disability.
Guardianship Alternatives
You should only pursue guardianship if no other viable alternative can provide appropriate support for the potential ward.
Depending on their cognitive ability, the following are some examples of less restrictive alternatives to guardianship:
- Durable power of attorney — A durable power of attorney is a legal document that allows an individual (the “principal”) to appoint someone (the “agent” or “attorney-in-fact”) to make financial and/or healthcare decisions on their behalf if they become incapacitated.
- Supported decision-making agreement — This alternative, provided by the Texas Estates Code, allows people with disabilities to express how and when they need help. The agreement offers various areas of activities of daily living that they can ask for help or ask that they do on their own.
- Representative payee — The representative payee, a person or an organization, will ensure that your needs are met and that bills are paid while they handle your money.
Exploring these options before pursuing guardianship is important, as they may offer the necessary support while allowing the individual to maintain some level of independence and control over their lives.
An experienced guardianship lawyer can help you determine whether guardianship is the right option for your loved one and guide you through the process if it is necessary.
Work With an Experienced Guardianship Attorney Near You
Guardianship is complex. An experienced guardianship attorney can help navigate you through the legal process. Shields Law Firm has a team of knowledgeable attorneys who can help guide you through the legal process and provide the necessary support to make the best decisions for your situation. Don’t hesitate to take action and contact us today to ensure you have the guidance and support you need.
