A guardianship is a legal arrangement where one person, known as the guardian, is appointed by a court to make decisions for another person, known as the ward, who is unable to make decisions by themselves due to a physical or mental condition.
Obtaining and administering a guardianship over another person in the State of Texas involves a legal process that requires careful consideration and attention to detail.
A guardianship attorney can help you navigate this complex process and ensure your communication with the courts and all interested parties runs smoothly. In fact, many courts will not even review guardianship petitions that are not filed by guardianship lawyers.
In this post, The Zimmerman Law Firm team will help you understand what guardianship means and how to obtain guardianship in Texas. If you have any questions, please contact us online or call (254) 271-2540.
Types of Guardianship in Texas
There are two types of guardianship in Texas. These are guardianship of the person and guardianship of the estate. We will discuss each of these in turn.
Guardianship of the Person
To establish guardianship in Texas, you must prove that the person in question is incapacitated. By definition, an incapacitated person is substantially unable to feed, dress, or shelter themselves.
You must clearly demonstrate that the person cannot care for their physical health or manage their finances.
Minors under 18 are automatically considered incapacitated, and it is, therefore, much easier to obtain guardianship over a minor.
Proving incapacity in an adult usually involves demonstrating that they have a physical or mental disability that renders them unable to care for themselves.
A guardianship of the person gives the guardian the authority to make decisions about the ward’s personal care and medical treatment, including decisions related to the ward’s health, education, and general welfare. Again, when someone is under a guardianship order, the court will refer to them as “a ward.”
Guardianship of the Estate
A guardianship of the estate, on the other hand, gives the guardian the authority to manage the ward’s finances and property, including managing the ward’s income, paying bills, and overseeing investments.
Depending on the ward’s capacity and the guardian’s ability to handle the job, two different guardians may be appointed when both the person and the estate require guardianship.
If this is the case, one guardian will be appointed for the ward and one for the ward’s estate. Alternatively, if the guardian can handle the job, a single person can act as guardian for the ward and the ward’s estate – there is no prohibition on doing so.
Prospective guardians need to understand that the guardian of an estate is a fiduciary. A guardian of an estate has a legal obligation to act in the best interests of that estate.
This means that once appointed, the guardian of the estate must post a bond with the court, as assurance that they will uphold their fiduciary duties.
Steps to Establishing Guardianship
In Texas, a guardianship can only be established by court order. To establish a guardianship, the following steps must be followed
File a Guardianship Application
To file for guardianship, you must complete and file an application with the proper court in the county where the person over whom you would like to establish guardianship resides.
The application will require detailed information about the proposed ward’s physical and mental condition, as well as your qualifications to serve as a guardian. Upon the filing of an application, the court will appoint what is known as an “attorney ad litem” to represent the person’s interests.
An attorney ad litem is an attorney who exclusively represents the best interests of the proposed ward. Once an attorney ad litem is appointed, the court may also order an evaluation of the proposed ward to determine if the prospective ward is truly incapacitated and if guardianship is necessary.
Prospective guardians should know there is a high burden of proof for demonstrating incapacity in Texas. Proving the incapacity of a prospective ward requires a doctor’s evaluation.
Once the evaluation is complete, the doctor must fill out a medical certificate, which must be filed within 120 days of the guardianship application.
Furthermore, Texas courts are reluctant to grant full general guardianships. Typically, guardianships are granted only over the area where the ward has demonstrated incapacity. Courts strive to give a guardian the minimum powers necessary to protect the incapacitated person.
Provide Notice to Interested Parties
After the application is filed, you will need to provide notice of the guardianship proceedings to all interested parties.
This includes the proposed ward, the proposed ward’s spouse and adult children, the proposed ward’s parents if living and not incapacitated, the proposed ward’s nearest living relatives, and the person or entity who has care or control of the proposed ward such as a nursing home or assisted living facility.
The purpose of the notices is to ensure that interested parties have an opportunity to participate in the guardianship proceedings and protect the proposed ward’s rights.
Attend a Hearing
The court will hold a hearing to review your application for guardianship. At the hearing, the court will consider the proposed ward’s ability to make decisions for themselves.
A judge will also consider your qualifications to serve as guardian. Texas law requires that, before ordering a guardianship, the court must consider less restrictive alternatives; guardianship may only be ordered if it is the least restrictive option to protect the proposed ward’s interests.
If the court determines that guardianship is necessary and that you are qualified to serve as guardian, it will issue an order appointing you as guardian.
File a Bond
Filing a bond only applies to guardians of estates. Before taking action as a guardian of the estate, you must first file a bond.
The bond, a type of insurance that provides financial protection in case a guardian fails to fulfill their responsibilities, ensures that you will manage the ward’s estate properly. The amount of the bond is determined by the court and is typically based on the value of the ward’s assets.
Responsibilities of Guardians
In addition, guardians have a number of ongoing responsibilities, including making decisions on behalf of the ward that are in the ward’s best interests, providing for the ward’s care, managing the ward’s finances and property, and filing annual reports with the court to update the court on the ward’s status.
Get In Contact With A Waco, Texas Estate Attorney Today
Obtaining and administering a guardianship is a complex legal process. Our attorneys are experienced in guardianship matters in the state of Texas.
They can help you navigate the legal process, guide you through a guardianship application, and ensure that you are fulfilling your duties as a guardian in accordance with the law.
If you believe you need a guardianship, contact The Zimmerman Law Firm today or call (254) 271-2540.