The guardianship process exists to allow courts to appoint individuals to make important decisions for a family member who is incapacitated and cannot handle his or her own affairs. The person cared for is called the “ward.” A guardianship may be cover the estate, the person, or both, depending on the needs of the proposed ward. The proposed ward may be incapacitated due to some physical or mental condition or may be a minor. Therefore, depending on the nature of the guardianship, a guardian’s responsibilities may include the management of income or assets, finding housing, obtaining adequate medical care and providing clothing, and obtaining food and other life essentials.
Guardianships are frequently an unexpected and emotional time for all involved. The Jackson Law Firm understands not only the legal process involved, but the emotional difficulties attendant to guardianships. We simplify the intricacies of what otherwise might be an intimidating process by explaining to you the law and standing by your side during each step. Please contact our office to discuss your options and whether a guardianship is suitable to your unique situation.
There are two types of guardians and guardianships. A guardian appointed to take care of the physical well-being of a ward is called a guardian of the person, while a guardian appointed to take care of the ward’s property is called a guardian of the estate. In some cases, only one type of guardian is appointed for a particular ward. In many cases, both a guardian of the person and a guardian of the estate is appointed for a ward. Often, but not always, they are the same person.
Further, during emergency or as special circumstances may require, the Court may order a temporary guardianship. A temporary guardianship gives the guardian the power to act for thirty to sixty days, or less if the court determines that the guardian can complete his or her duties in less time. This action is reserved for critical situations when there is imminent danger to the person or property of the individual in need of the temporary guardianship (the “respondent”). The court may appoint a temporary guardian when it is presented with substantial evidence that a person may be incapacitated and the court has probable cause to believe that the person or that person’s estate requires the immediate appointment of a guardian.
The temporary guardian’s powers are limited to those requested of and granted by the court. A person for whom a temporary guardian is appointed is not presumed to be incapacitated and retains all rights and powers that are not specifically granted to the temporary guardian. If a permanent guardianship is not in place at the time the temporary guardianship expires, then the respondent regains all rights taken away with the temporary guardianship.
A minor is a person younger than 18 years who has never been married or who has not had his or her disabilities of minority removed by court action. In the legal sense, a minor is considered an incapacitated person. An incapacitated person is an adult who, because of physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs. The definition of incapacitated person also includes a person who must have a guardian appointed to receive funds due the person from any governmental source.
When a family member becomes incapacitated, Texas Courts oversee the appointment of one or more guardians to handle a loved one’s financial and/or day to day affairs.
Texas law has very specific procedures in place for proving the need for a guardianship and getting a guardian appointed. Any variance from these procedures and the Court will reject the application. In fact, most courts will not entertain guardianship applications filed by non-lawyers. To obtain a guardianship, incapacity must be proven by clear and convincing evidence – a very high standard. Unless the proposed ward is a minor, a certificate from a doctor who has examined the proposed ward must be filed with the court. There are also specific requirements for the certificate, as it must be dated within 120 days of the filing of the application for guardianship.
The court will also appoint an attorney – called an attorney ad litem – to represent the proposed ward, since the granting of a guardianship takes away some of the ward’s civil rights. Texas courts typically employ the doctrine of least restrictive alternatives in guardianship cases by tailoring the guardianship to the proven needs of the ward. Thus, the Court seeks to only take away as few of the ward’s rights as possible and give the guardian only those rights and powers as is necessary to protect the ward or the ward’s property.
We recommend you contact our office to discuss these procedures in greater detail and to evaluate whether or to the extent a guardianship is appropriate.
If the court decides that a guardian is needed, Texas law provides a priority list for choosing the guardian. If the ward is a minor, the following persons have priority in the following order: parents; the person designated by the last surviving parent of the ward in a properly executed designation of guardian; the nearest ascendant in the direct line of the minor (ascendants are grandparents, great-grandparents, etc.); next of kin; and a non-relative.
If the ward is an adult, the following persons have priority in the following order: the person designated by the ward prior to his or her incapacity in a properly executed designation of guardian; in some cases, the person designated by the last surviving parent of the ward in a properly executed designation of guardian; the ward’s spouse; next of kin; and a non-relative. If more than one person of the same priority wishes to be guardian, the court chooses the one who is best qualified to serve. In considering priority, it is important to note that the court has the authority to skip over a person higher on the priority list if the court finds that person to be ineligible.
A person is disqualified and ineligible to be appointed guardian if he or she is a minor; a person whose conduct is notoriously bad; an incapacitated person; a person who has certain conflicts of interest with the ward; a person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate; a person found unsuitable by the court; a person specifically disqualified from serving as guardian by the ward prior to his or her incapacity in a properly executed designation of guardian; and a person who is not a resident of Texas and who has not designated an agent in Texas for service of process. Because of these priorities, it is important for an adult individual who is worried about his or her possible future incapacity to consider designating those persons he or she wishes to serve as guardian and those persons he or she wishes to disqualify from serving as guardian, especially if a non-relative is preferred.
It is impossible to include an exhaustive list of the powers and duties of a guardian of the person here. In general, a guardian of the person is a fiduciary and is held to the high standards to which all fiduciaries are held in caring for the ward. The guardian of the person is required to post a bond in an amount set by the court to assure that the guardian fulfills his or her duties. Unless the guardian’s duties are restricted by the court, the guardian of the person is entitled to the charge and control of the person of the ward and has the right to have physical possession of the ward and to establish the ward’s domicile, the duty of care, control and protection of the ward, the duty to provide the ward with clothing, food, medical care and shelter and the power to consent to medical, psychiatric and surgical treatment.
The guardian of the estate also is required to publish a notice to creditors in a local newspaper and file an inventory of the ward’s assets. Each year, the guardian of the estate is required to file an annual account, detailing the receipts and disbursements during the year. This is a checkbook-type accounting – the beginning balance, plus receipts, minus disbursements, must equal the ending balance to the penny. When the guardianship terminates, the guardian must file a final account.
Expenses associated with creating a guardianship include:
These expenses may be paid out of the ward’s estate if the judge creates a guardianship.
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