Guardianship

It can be difficult to watch someone you love struggle. It’s natural to want to put protections in place to help that person. A guardianship is a legal tool used to protect an incapacitated adult and, in certain circumstances, a minor.

 

An incapacitated person over the age of eighteen may need someone to manage his or her personal and financial affairs, and in the State of Texas referred to here as ‘the State,’ a court with the appropriate jurisdiction, here ‘the Court,’ may appoint a guardian to manage either or both under the Court’s supervision. The guardian responsible for the person’s personal affairs is called the Guardian of the Person, and the guardian making financial decisions is called the Guardian of the Estate. Because a guardianship requires the Court to strip away some or all of a person’s basic rights to make health and/or financial decisions for themselves, the State requires very detailed and particular steps to protect the rights of the person, referred to as the‘Ward.’ The State also requires that the process include the exploration of less restrictive alternatives (discussed more below), and the prospective guardian should discuss all such matters with a competent attorney before applying.

 

A Guardian of the Person may make decisions about a Ward’s place of residence, certain medical treatments, and similar decisions about a Ward’s well-being. A Guardian of the Estate may make financial decisions, like selling property in order to raise funds for the Ward’s care and paying the Ward’s bills. However, the Guardian of the Estate must ask the court for permission and receive a court order before selling property. In fact, the Court must approve many other actions before either guardian may act.

 

To become a guardian of an adult, the proposed guardian or applicant must first retain an attorney licensed in Texas and certified for guardianship cases. The proposed guardian or the attorney representing the proposed guardian generally takes the following steps:

1. If the person is not a minor, you must prove their incapacity with a doctor’s certificate. This must be filled out within 120 days of the guardianship application by a physician licensed in the State of Texas.

2. File an application for the guardianship with the county judge or Statutory Probate Court, if there is one, where the proposed ward resides.

3. Ask the Court to appoint an attorney ad litem to represent the proposed Ward in the proceedings.

4. Complete a background check and take an online or an in-person training course provided by the Judicial Branch Certification Commission (JBCC).

5. Procure a doctor’s evaluation detailing the cognitive deficits of the proposed Ward to establish whether and to what extent the Ward needs a guardian.

6. Request a hearing before the Court, and once one is set provide official notices to any interested parties, some of whom may have to waive their right to serve as guardian.

7. Appear before the Court to present evidence on the appropriateness of creating a guardianship. The proposed Ward has the right to appear as well. If the Court finds that a guardianship is necessary, the Court will sign an order appointing a Guardian of thePerson or a Guardian of the Estate or both and usually, order the Guardian to post a bond.

8. Post the bond. The size of the bond varies depending on whether the Guardian is of thePerson and/or the Estate and the size of the estate.

9. Request Letters of Guardianship, the Guardian’s credential to act for the Ward.

10. Submit an inventory of the Ward’s assets to the Court within 30 days and publish a notice to creditors in the local newspaper if the Court appoints a Guardian of the Estate.

11. Provide the Court annually with a Report of the Person by the Guardian of the Person detailing the Ward’s health and well-being and an Annual Accounting by the Guardian of the Estate detailing the Ward’s current financial status and transactions made on behalf of the Ward.

Thanks to modern medical advances, people are living longer than ever and, as a result, the number of "vulnerable" or incapacitated individuals has grown. Guardianship proceedings can be complex. The Pleasant Law Firm can help you avoid guardianship through proper estate planning. But if plans have not been made to avoid guardianship, we have the experience to assist you through the probate courts to achieve the necessary guardianship of your loved one.

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Alternatives to Guardianship:

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Supported Decision Making

In 2015, Texas became the first state to legally recognize supported decision-making agreements as an informal alternative to guardianship. In a supported decision-making agreement, a person with a disability chooses someone they trust to serve as their supporter. The supporter can help the individual with a disability understand the option, responsibilities, and consequences of their decisions. The supporter cannot, however, make a decision for the person with a disability. These agreements can be provided to people like doctors and service providers.

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Less Restrictive Alternatives to Guardianship

Supported Decision Making is the least restrictive alternative to guardianship, but depending on the case, a different approach may be more appropriate. In some cases, an individual will retain some, but not all, control over decisions. A representative can be designated to make decisions for an individual in specific areas. Some less restrictive examples include:

• Powers of Attorney 

• Representative Payee Agreements 

• Special Needs Trusts

• Health care or Advanced Directives