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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