GuardianshipGuardianship proceedings can be a necessary means by which to protect a loved one that has become incapacitated, or when a minor child no longer has a natural guardian. Given the gravity of the situation and the strict legal requirements involved, it is important to use an experienced guardianship lawyer to navigate the process involved with having a guardian appointed for a proposed ward.

Guardianship Laws in Texas

In Texas, guardianship is a legal and fiduciary relationship established by a court that appoints a guardian to protect someone who is incapacitated and unable to care for themselves and/or their finances. According to Texas law, an “incapacitated person: is:

  • A minor (under 18 years of age);
  • An adult who, because of a physical or mental condition, is substantially unable to:
    • Provide food, clothing, or shelter for himself or herself;
    • Care for the person’s own physical health; or
    • Manage the person’s own financial affairs; or
  • Must have a guardian appointed for the person to receive funds due the person from a governmental source.

Essentially, an incapacitated person is a child, a disabled adult, or an elderly individual who has lost significant mental or physical capacity. Texas law provides a process to assign responsibilities to a guardian for an incapacitated person, also known as a ward.

If the ward is a minor, Texas law appoints guardians in the following order:

  • A parent
  • A person the last surviving parent designates as guardian
  • The nearest family member to the minor after the parents (such as a grandparent, aunt or uncle, or adult sibling)

If the ward is an adult, Texas law appoints guardians in the following order:

  • Someone the proposed ward designated prior to the time they became incapacitated
  • The ward’s spouse
  • The ward’s next of kin
  • An individual determined by the court to be an appropriate guardian

Before a guardian is appointed, Texas law requires an applicant for guardian prove that the proposed ward meets the legal definition of incapacity, that there are no alternatives to a guardianship and no supports and services available to the ward to avoid a guardian, that it is in the best interest of the proposed ward to have a guardian, and that the selected guardian is qualified to serve in that role.

To initiate a guardianship, an information letter to a proper court may be submitted outlining the concerns about the proposed ward. The court may appoint an investigator or an ad litem to assess the needs of a proposed ward. An application for guardianship by an interested person must be filed with the court and must comply with the Texas Estates Code. The person in need of the guardian, who is referred to as the proposed ward, is then given proper notice that an application for guardianship has been filed. The court will then appoint another attorney, called an attorney ad litem, to represent the proposed ward. Ultimately, the court will hear the issues and merits associated with the appointment of a guardian and make a determination regarding capacity.

Types of Guardianships

In Texas, there are four types of guardianships:

  • Guardian of the person, full or limited: persons that are unable to provide food, clothing, shelter or make medical decisions due to physical or mental incapacitated may need a guardian of their person to make decisions regarding where to live, consent to medical treatment and to manage the ward’s needs. The guardian’s powers and duties may be limited if the ward is determined to have partial capacity.
  • Guardian of the estate, full or limited: persons unable to manage their own financial affairs and lacking capacity to understand contractual obligations may need a guardian appointed to manage the ward’s property, finances, and to protect the ward from financial exploitation.
  • Guardian of the person and estate: persons found to lack capacity as to managing their healthcare and finances may need a guardian to perform both functions; careful consideration should be made as to whether the value of the ward’s assets justify a guardianship of the estate.
  • Temporary guardianship: the guardianship process takes time, and some situations may need immediate intervention of a guardian while the permanent guardianship is pending. For instance, a proposed ward has no one with authority to make emergent medical decisions or family members are giving a hospital conflicting directions as to medical care. Or there is reason to believe that a proposed ward’s finances have been compromised with risk that the property can be retrieved.

Responsibilities of a Guardian

A guardian is granted specific authority by the court to act on the ward’s behalf and is required to be bonded to protect the ward and the ward’s estate.  Before the court will appoint a guardian, a rigorous process must be followed to ensure the appointment of the guardian is in the ward’s best interest. A guardian should be prepared to undergo a background check, present evidence the guardian is qualified and be prepared to bond and account to the court for all funds the guardian manages.

Most importantly, a guardian is a fiduciary to the ward. Violating fiduciary duties can not only result in removal as guardian, but place the guardian, individually, in legal jeopardy.

Legal Guardianship for Adults with Disabilities

Guardianship for adults isn’t always the best solution. Texas law provides a multitude of other legal avenues to protect your loved one’s interest, including but not limited to:

  • Supports and Services
  • Medical Power of Attorney
  • Statutory Durable Power of Attorney
  • Special Needs Trusts
  • Management Trusts

All of the above may allow for care and decisions-making capabilities on behalf of another person and prevent the need for a guardianship. Generally, a guardianship of an adult with disabilities is the answer when there are no other alternatives available.

Guardianship Lawyer Nikki Davis | Houston, Texas

A guardianship is not something you should attempt to do on your own. There is a complex set of laws you must follow and the court takes its judicial responsibilities seriously when it comes to guardianships. If you are considering seeking a guardianship or whether a guardianship may be avoided, you should consult with an experienced attorney who can explain the alternatives and/or represent you through the court process. We will work closely with you at every phase. Call us today at (713) 335-9585 or message us online to book your initial consultation.

Frequently Asked Questions

What is the guardian’s role?

The guardian will make decisions for the ward, consistent with the scope of the guardianship as ordered by the court. The guardian may be responsible for ensuring the ward’s needs are met, that the ward is physically cared for and/or to protect the ward’s finances. A guardian is not personally financially responsible for the ward, rather a guardian should protect the ward’s available resources and apply for financial assistance or benefits when applicable.

Can you file for guardianship for an adult in Texas?

A person interested in the welfare or well-being of a ward may apply for guardianship of an incapacitated adult as defined by the Texas Estates Code. The Texas Estates Code also governs the requirements for the information to be included in an application for guardianship. An experienced guardianship attorney can help you prepare and file an application with the court, represent you in the process through final hearing on that application. The court will then determine if there is a need for a guardianship. Should the court grant a guardianship of the estate, the courts typically require the guardian to have an attorney throughout the administration process.

What happens during a guardianship hearing?

After filing the guardianship application, both the person requesting to be a guardian and the ward in question must go before a judge for a hearing. At the hearing, the judge will ask any questions he or she might have for both the potential ward and the proposed guardian(s). Anyone against the guardianship may also speak their reasons for attending and protesting. During the hearing, an attorney ad litem will be assigned to represent the ward and his or her best interests. If the judge approves the guardian(s), they will be sworn in to take an oath after the judge gives the order appointing them as such.

What is the difference between power of attorney and guardianship?

A power of attorney allows a designated person or persons (Agents) to act on behalf of another party (the Principal) with respect to either healthcare decisions or finances. A Principal can limit the scope of the Agent’s powers. A medical power of attorney only becomes effective when the Principal cannot make medical decisions on his or her own.  A financial power of attorney can be effective immediately or upon the Principal’s incapacity. A power of attorney is a legal document and does not require court involvement to take effect.

Guardianships on the other hand, require a court to determine the need to have a guardian appointed and determine who is the appropriate guardian. A guardianship is much more comprehensive in scope, as the court makes a judicial declaration of incapacity and takes away a person’s legal rights to make certain decisions. Unlike an Agent under a power of attorney, the guardian may need court approval before taking certain actions, such as moving a ward from his or her home to a nursing home, selling a ward’s assets, and spending the ward’s funds.