Texas Guardianships: The Steps

Guardianship is a legal process to protect an incapacitated individual from abuse, neglect, and exploitation. Guardianship provides for the person's care and management of assets.

The individual who needs to be protected is called a "ward." The person who is court-appointed to assist the ward is called a "guardian." There are two types of guardians.

A Guardian of the Person takes care of the physical well-being of a ward, and a Guardian of the Estate takes care of a ward's property. A guardian is appointed by a judge after a legal proceeding. Often both a guardian of person and a guardian of estate are appointed, and this may be the same person.

The steps involved in becoming a court-appointed guardianship include:

Filing an application with the court requesting that a qualified guardian be appointed.

Serving the application to the proposed ward.

Notifying the proposed ward's relatives.

Obtaining a physician’s statement on nature and degree of the proposed ward's incapacity.

Holding a hearing before a judge to determine whether a guardianship is necessary.

Qualifying the guardian, taking an oath, and receiving letters of guardianship.

Guardianships may be contested by the ward or another individual.

Guardianships may be temporary, in an emergency. These are intense, quick, and limited guardianships.

Guardianships are often permanent. They are 'permanent,' but the court reviews them annually to safeguard the care and rights of the ward.

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Texas Guardianships: The Cast of Characters

If someone files documents with the court asking to be made guardian, that person is the Applicant. The Applicant will be represented by an attorney during the legal proceedings at the courthouse.

After an application for guardianship is filed, the judge must appoint an attorney for the proposed Ward. This attorney is called an Attorney Ad Litem. The Attorney Ad Litem represents the wishes of the proposed Ward during the guardianship proceedings. The Attorney Ad Litem and the proposed Ward work together.

If the guardianship is uncontested, a hearing will be set, the court will hear the evidence, and the judge will appoint a qualified guardian.

If the guardianship is contested, the proceeding becomes more complex and time consuming. In contested situations, the question may not be whether the proposed Ward needs a guardian but who may serve? There may be more than one person applying. If so, each applicant has an attorney.

In these situations, the judge may appoint a Guardian Ad Litem to sort through the information and make a recommendation to the court. The job of the Guardian Ad Litem is to be a neutral fact-finder, investigating the situation and determining what would be in the proposed Ward's best interest. At court, the judge will listen to all sides. The judge will consider the Guardian Ad Litem's recommendation, weigh the preferences of the proposed Ward, and review the doctor's medical report before deciding whether a guardianship is appropriate. If so, the judge will appoint a guardian for the Ward.

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Texas Guardianships: What are They?

Guardianship Basics
At times, a person may not be able to care for his or her own personal or financial needs. Texas law provides a remedy, guardianship, so that a person's affairs may be supervised by the court.

This is a legal action of last resort, which may be necessary for various reasons. It may be used when estate planning fails, when there is no estate planning documents at all, or it may be appropriate when others will not accept the power of legal documents.

A guardian is appointed by the court and legally stands in the shoes of the person under disability, the Ward.

After appointment, the guardian has the same rights and responsibilities as the ward. The guardian is not personally responsible but only serves as the Ward's agent.

Limited or General?
A guardianship may be general or limited, depending upon the severity of the disability. The court may only award the necessary powers to the guardian. No more, no less.

Person or Estate?
A guardianship may be of the person. This means that the guardian manages the Ward's personal affairs, such as medical or placement decisions. A guardianship may be of the estate, which means that the guardian manages the Ward's financial affairs. Many times, a guardianship is for person and estate, simultaneously.

Temporary or Permanent Guardianship?
A temporary guardianship may be sought when there is a threat of immediate harm to the Ward or the Ward's estate. A temporary guardianship is a response to an emergency. The temporary guardian will only be granted the necessary protective powers. Temporary guardianships must be reviewed later.

A permanent guardianship is granted to protect a Ward or his/her estate on a more lasting basis. A permanent guardianship is based on a doctor's medical evaluation of the Ward. There is a full hearing before a judge. If the judge orders a permanent guardianship, it is intended to last for the life of the ward, if statutory mandates are fulfilled by the guardian.

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Estate Planning: What is it & Who Needs It?

Death and taxes. You can't avoid either one, but you can plan for them. So what is estate planning, anyway? The plan for what you have, what you want, and where it all will go. Even if you don't own the Taj Mahal, you need a will. A will is your treasure map, describing your property, identifying the people that you care about, and leaving your property to those people.

Without a will, your property will be left to your closest living relatives. Maybe they are the people you wanted to have your things, or maybe not. Without a will, the courts use the law to 'guesstimate' where you might have wanted the estate to go. Your estate may consist of a house, stocks and a 401(k) or just a TV set, your TV tray and your DVD collection. Whatever it is that you have, that's your estate.

Ancillary estate planning documents are good to have. Consider: a Living Will, a HIPPA Release, a Declaration of Guardian in Advance of Need (for your minor kids, or for yourself if you ever become incapacitated), a Durable Power of Attorney, a Financial Power of Attorney, a Medical Power of Attorney, and/or Burial Instructions. Some documents are good to have now while you may need others, later.

We can't cheat death or taxes. But we can plan for more of what we want when we want it. And, we can take the burden off of our survivors by telling them what we want in writing and then filing it away. Choose to do your estate planning on a beautiful day, when you don't have a care in the world, and the sun is shining and the birds are chirping. Do your relatives a favor and give yourself peace of mind.

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