Guardianship

Guardianship is a legal arrangement by the court to protect vulnerable persons from abuse, neglect, and exploitation by appointing a person, the guardian, to take care of the person or property of a minor or an incapacitated person (sometimes called the ward).

What makes a person incapacitated under the law?

A minor (younger than 18 years of age) can be considered incapacitated if they have never married and never had their disabilities of minority removed for general purposes.

In the case of an adult, the individual can be considered incapacitated if they have an intellectual or developmental disability and can not make competent decisions related to personal, medical or financial matters.

Who can be a guardian?

If you are seeking a legal guardianship, the courts will look to family before anyone else. For minors, the court will give preference to the following order:
1. Parent
2. The person, the last surviving parent, designates for guardianship
3. Nearest ascendant to the child after the parents
4. Kin
5. Non-relative determined by the court

Can anyone serve as a guardian?

No, not anyone can serve as a legal guardian. Texas law enumerates those not qualified to be guardians and conditions when it is presumed to be not in the ward’s best interest.

The following are some such disqualifications:
1. Minor
2. A person whose conduct is notoriously bad
3. Incapacitated Person

Is there a required qualification for guardians?

Yes, a guardian is potentially qualified when the guardian has:
1. Completion of the JBCC certificate online course
2. Taken and filed the oath required
3. Given required bond
4. Filed bond with the clerk and approved by the judge

Can a potential ward choose the guardian?

No, the appointment of a guardian is a decision made by the court and not of the ward. However, the preference of the ward is given due consideration by the court.

Can I designate a guardian for my children?

Yes, one can pre-designate a guardian in the event of incapacity. In Texas, a “Designation of Guardian in Advance of Need” document can be completed in advance. If no designation exists, the court will appoint a guardian in the usual course. One can also designate who they 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 person cannot serve as guardian.

How long is the appointment of a guardian?

Generally, a legal guardian remains in service until the estate is closed or when provided by law. Guardianship may in end in a number of 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.

Is this appropriate for my child?

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 sever physical disability impairs your child’s ability receive medical treatment or make personal and financial decisions.

Do I have to go to court to get guardianship?

Yes. As with any court proceeding, you will need to file an application (or a guardianship petition), present evidence of the potential ward’s inability to care for themselves or manage money along with a doctor’s opinion (called a physician’s certificate of medical examination “PCME”) to show the impact of the disability on activities of daily living. The judge will then appoint a guardian if he or she is convinced one is needed.

Where should a guardianship proceeding be filed?

Your application or petition for guardianship should be filed in the court exercising original probate jurisdiction. Such a court also has jurisdiction over all matters related to the guardianship proceedings.

Generally, the appointment of a guardian, whether for the person, estate, or both, is brought in the county in which the proposed ward resides or is located on the date the application is filed or in the county where the principal estate of the proposed ward is situated. However, the following may also be possible:
a. County of residence of both the minor’s parents
b. If only one parent is living and has custody of the minor in the county they reside in.
c. If both parents died simultaneously, in the county where both resided at the time of their demise, they lived in the same county.

What does filing involve? 

1. Application
An application can be filed by any person at the court having jurisdiction and venue. It must state all the required information as provided in Section 682 of The Code, which includes general and jurisdictional information of the proposed ward and proposed guardian, nature and kind of guardianship sought, nature and degree of incapacity of the proposed ward, among others. Lastly, it must be signed and verified by the applicant.

2. Service
A fact that must have been considered before the filing is to whom service must be made and how it can be properly effected. Mere reliance on the Texas Rules of Civil Procedures will be insufficient as Probate rules are different. This is one of the tricky parts that will surely be advantageous if working with an experienced guardianship lawyer.

3. Doctor’s Report (PCME)
A doctor’s report by a medical doctor licensed in Texas is one of the attachments you need to file with your application. A prior meeting or consultation with the doctor would best serve the party as it will give an avenue for both the doctor and the lawyer to work together for the application. As to the format of the report, the court has a standard form. It must be based on an examination not more than 120 days before the filing and must be dated within the said period.

4. Filing
Once you have all of the pieces: an application and the doctor’s report, you are ready to file your application for guardianship.

What else is involved in the guardianship process? 

1. Notice to the potential ward
The proposed ward, those listed for personal citation, and those who must have mailed notice shall be served.

2. Investigation by the Court Investigator
Once an application is filed, the Court Investigator will start the investigation. After that an Attorney ad litem will be appointed by the court. The hearing will ensue when the Investigation Report is ready, along with the other documents already submitted.

3. Appointment of a Guardian ad Litem
The court may appoint a guardian to watch after someone during a case. In guardianship proceedings, the judge may appoint a guardian ad litem to represent the interests of an incapacitated person in the proceeding. The guardian ad litem must protect the incapacitated person from enabling the court to determine which action should serve their best interest, determine whether the person is incapacitated and whether guardianship is necessary.

4. Attorney ad Litem
An attorney ad litem is a lawyer appointed by the court to represent the legal interests of the proposed ward or simply to advocate for the incapacitated.

What is the difference between a Guardian ad litem and an Attorney Ad Litem?

The guardian ad litem represents the “best interests” of the ward/proposed ward, while the latter represents their “legal interest,” simply the ward’s or proposed ward’s lawyer. It must be noted that best interest is not always the same as legal interest. An attorney ad litem is required to be appointed. However, the appointment of a guardian ad litem is at the court’s discretion based on the circumstances of the incapacitated.

What is the nature of the appointment of a guardian?

A guardian can be appointed by a court with full or limited authority over an incapacitated person based on their actual mental and physical limitations and as necessary to promote and protect the person’s well-being. In guardianship with limited authority, the court shall encourage the development or maintenance of maximum self-reliance and independence of the incapacitated.

Is guardianship permanent?

It might be. Generally, guardians are appointed for permanent guardianship, unless it is one of temporary nature or when a judge decides that a guardian is no longer needed. In some cases a limited guardianship may allow a potential ward to retain specific rights and privileges.

What are the types of Guardianship?

a. Guardianship of the Person
b. Guardianship of the Estate
c. Temporary Guardianship

What is the guardianship of the person?

Guardianship of the person requires the guardian to provide care for the person with disabilities. The guardian, in this case, is responsible for the ward and is an advocate of the health and general well-being of the ward.

What are the powers and duties of a guardian of the person?

1. Take charge of the ward.
2. Duties of the guardian correspond with the rights of the guardian:
a. Right to physical possession of the ward and to establish the ward’s legal domicile
b. Duty to provide care, supervision, and protection for the ward
c. Duty to provide the ward’s necessities
d. Power to consent to medical, psychiatric, and surgical treatment

What is guardianship of the estate?

Guardianship of the estate requires the guardian to take control of the finances and property. The guardian possesses any or all of the powers and rights with respect to the ward’s property.

What are the powers and duties of a guardian of the estate?

1) Possession and management of all property of the ward
2) Collect all debts, rentals, claims due to the ward
3) Enforce all obligations in favor of the ward
4) Bring and defend suits by or against the ward
5) Take care of and manage the estate as a prudent person would manage the person’s property.
6) Account for all rentals, profits, and revenues of the estate

What is temporary guardianship?

Different than a permanent guardianship, a court may appoint a temporary guardianship when presented with substantial evidence that a person may be an incapacitated person and said person, the person’s estate, or both require the immediate appointment of a guardian. The ward, in this case, retains all rights and powers that are not specifically granted to the temporary guardian.

Can there be guardianship of both the person and the estate?

Yes, in certain instances, the court can appoint a person to be a guardian of both the person and of the estate. In case of full guardianship of the person and estate, the guardian has full legal authority in all matters of the ward’s care and estate. The guardian owes a fiduciary duty to the ward (an obligation one to act only in the interest of the individual with a disability). 

Can the terms of guardianship be modified?

Yes, the powers and duties of a legal guardian can be limited. The ward may be allowed to take care of themselves and manage their finances based on a written application filed by the ward or a person interested in its welfare. Legal guardianship may also be terminated, and the powers and duties of the ward can be restored when they are no longer incapacitated.

Is the guardian liable for the conduct of the ward?

No, the guardian is not liable to a third person for the conduct of the ward on the sole basis of their appointment as a guardian. The guardianship program shall only be liable for civil damages arising from an act or omission made by the guardian if it was willfully wrongful, was taken or made conscious indifference, reckless disregard, bad faith, malice, or was grossly negligent.

Does an incapacitated person lose all legal and civil rights?

Not necessarily, the individual retains all legal and civil rights not granted by court order to the guardian. In some cases, a limited guardianship may also be appropriate. 

How will the potential ward be affected by guardianship?

Although the ward is receiving help with personal care and daily living activities, many of the ward’s rights are terminated. Legal guardianship is a significant deprivation of a person’s rights.

Guardianship Alternatives

What are the less restrictive ways to help a person with disabilities?

Guardianship should only be pursued if there is no other viable alternative that can provide appropriate support for the potential war. Depending on their cognitive ability, the following are some examples of less restrictive alternatives to guardianship:
a. Durable Power of Attorney
b. Supported Decision-Making Agreement
c. Representative Payee

What is a Durable Power of attorney (“POA”)?

An agent is appointed to decide on behalf of the principal in cases of disability or incapacity. The arrangement allows the attorney-in-fact or agent to sign legal documents, obtain health care information, conduct banking, and other delineated duties. A POA is less restrictive than guardianship because the principal has the power to enumerate things that the agent is authorized to deal with on their behalf.

Will a Power of Attorney allow me to make the decisions for my child?

Not necessarily. A power of attorney allows the attorney-in-fact or agent to fulfill their request when your child is unavailable. You have a fiduciary duty under the Power of the Attorney, even if you disagree with your child’s wishes. You must follow your child’s wishes or not act at all.

What is a Supported Decision-Making Agreement?

This alternative, provided by the Texas Estates Code, allows a person 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.

What is a Representative Payee?

Only ensures that the person’s money is appropriately dispensed with, while the person is still allowed to make important life decisions. The representative payee, a person or an organization, will make sure that your needs are met and that bills are paid while they handle your money.

Work with an experienced guardianship attorney near you
Special Needs Planning is complex, an experienced guardianship attorney with Shields Law Firm can help navigate you through the legal process.

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