Guardianship is the legal process through which one person is appointed by a court to serve as the legal representative to act on behalf of another. The individual for whom a guardian is appointed is known as the “ward.” An adult must be determined to be “incapacitated” under Texas law before a guardian will be appointed. A guardian may be appointed by the court to serve as guardian of the person for the ward, guardian of the estate for the ward, or both, depending upon the property or assets owned by the ward. A guardian has significant duties to both the ward and the court.
Do I need to be appointed as guardian of my disabled child?
The short answer to this question is that it all depends on your child’s abilities and disabilities, and whether he or she needs assistance or intervention in handling personal decisions, medical decisions, or financial decisions. A guardian can only be appointed for a person who has been determined by a court to be “incapacitated.” Of course, most people with disabilities are not “incapacitated,” as many disabilities do not rise to the level of incapacity. An “incapacitated person” is defined in Texas as a person who is either (1) a minor child, or (2) 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 his or her own physical health, or manage his or her own financial affairs. Since a child is considered to be incapacitated by virtue of being a minor until age 18 under Texas law, and the parents are considered to be the natural guardians of their child until that age, the parents should have no problems with handling any and all decision-making for their child without question until adulthood. Once the child turns 18, the authority of the parents to act for their disabled child might be questioned by medical professionals, school officials, government agencies, financial institutions or advisors, etc. If the adult child does not have the ability to make his or her own decisions, then a guardian may need to be appointed.
Is guardianship expensive in Texas?
Guardianship can be a fairly expensive process in Texas, which is one reason why attorneys generally encourage their clients to plan to avoid guardianship if at all possible. Before a guardianship application is filed with a court, the applicant should be encouraged to consider alternatives to guardianship, such as a medical power of attorney, a financial power of attorney, a directive to physicians, a supported decision-making agreement, and similar documents. If someone has the ability and capacity to execute such legal documents, then a guardianship generally can be avoided. If the proposed ward does not have the ability to understand and meaningfully execute such a document, then a guardianship may be necessary.
Can I represent myself in a guardianship proceeding in Texas?
The guardianship process is becoming increasingly complicated and technical, and, therefore, many courts will not permit non-lawyers to represent themselves on guardianship applications. If you are interested in trying to do so, you should begin by asking the staff of the court that will preside over the guardianship proceeding in question, in the county where the proposed ward resides. In most cases, this will be the same court that presides over probate matters, such as a statutory probate court, a county court at law, or a county court.
Can I just continue to act for my disabled child without a guardianship?
As long as your child is a minor, you generally will have no problem with making all decisions for your child. After age 18, however, your authority to continue to act for your child, and make decisions for your child, may be questioned by doctors, hospitals, government agencies, financial institutions, and others. If your child is incapacitated, as defined under Texas law, then you may need to apply to be appointed by a court as the guardian of your child.
What is the process for having a guardian appointed in Texas?
The process involved in applying for guardianship, being appointed as guardian, and continuing to serve as guardian can be complex, technical, and detailed. The steps can best be thought of as the following:
The proposed ward should first be assessed by an appropriate physician, and the physician should complete an official report of that assessment. Most courts require the physician to complete a “Physician’s Certificate of Medical Examination,” a copy of which is also available in the forms section of this website.
An application is prepared and filed with the court having jurisdiction to hear guardianship matters in the county where the proposed ward resides.
The proposed ward must be personally served by a constable, sheriff, or other person with authority to serve official court papers.
The court appoints an “attorney ad litem” to represent the interests of the proposed ward.
The proposed guardian must register with the Texas Judicial Branch Certification Commission (JBCC), have a criminal background check conducted, and take required online training. http://www.txcourts.gov/jbcc/register-a-guardianship/
A hearing is scheduled with the court on the application, at which evidence and testimony regarding the incapacity of the proposed ward is presented, along with evidence and testimony regarding the qualifications of the applicant to serve as guardian.
If all required proof is provided to the court, then the court will enter an order appointing the applicant as guardian of the person, guardian of the estate, or guardian of both, depending upon the ward’s needs. The court may also order that the guardian obtain a guardian’s surety bond.
The guardian must then qualify as guardian by taking an oath of office and posting any required fiduciary bond.
Once the guardian has “qualified,” the clerk of the court will issue “letters of guardianship,” which serve as the official certificate reflecting the authority of the guardian to act and make decisions for the ward.
How do I start the process?
If you believe that you have a family member who is incapacitated, and who needs assistance with decision-making, or protection from abuse, exploitation or neglect, then you should begin by having a doctor complete a Physician’s Certificate of Medical Examination. You can call (512) 368-9323 or e-mail firstname.lastname@example.org to schedule a time for a meeting or phone consultation to discuss the guardianship process in more detail.