Guardianship

In Texas, guardianship is a legal relationship established by the court, where a guardian is appointed to care for and manage the affairs of an individual who is incapacitated and unable to care for themselves. Under Texas law, an “incapacitated person” is defined as:

• A minor;
• An adult individual, such as an elderly person or developmentally disabled adult, who, because of a physical or mental condition, is substantially unable to provide for themselves, to care for their own physical health, or manage their financial affairs; or
• An individual who must have a guardian appointed to receive funds due them from any governmental source.

The person the guardian is caring for is known as a “Ward”.

The first step in the guardianship process is determining whether it is the most appropriate and necessary option for the proposed Ward. Because guardianship is a significant legal intervention with substantial restrictions, it’s important to explore less restrictive alternatives. This evaluation involves input from various professionals, including attorneys, the proposed Ward’s doctor, and, in some cases, court staff, to ensure that guardianship is truly the best course of action.

Guardianship in Texas may be deemed necessary under several circumstances, ensuring the protection and well-being of those unable to care for themselves:

• Adults with Severe Disabilities: For individuals whose mental or physical impairments hinder their ability to make sound decisions, guardianship may be instituted to ensure their safety and well-being.
• Elderly Individuals with Diminished Capacity: When age-related conditions such as Dementia or Alzheimer’s disease prevent elderly individuals from managing their financial or healthcare matters, guardianship may be necessary to protect their interests.
• Minors Lacking Parental Care: In situations where parents are deceased, incapacitated, or otherwise unable to provide adequate care, a court-appointed guardian may be designated to oversee the child’s welfare.

There are four distinct types of guardianships, each designed to address the specific needs of an incapacitated individual:

• Guardian of the Person (Full or Limited): The guardian is tasked with providing care, supervision, medical treatment, food, shelter, and clothing for the Ward, ensuring their overall well-being.
• Guardian of the Estate (Full or Limited): The guardian is responsible for managing the Ward’s financial affairs, including property management and decision-making regarding their assets.
• Guardian of the Person and Estate: This type of guardianship combines both responsibilities. The guardian is entrusted with managing the Ward’s care as well as their financial matters.
• Temporary/Emergency Guardianship: A temporary guardianship is appointed on a short-term basis, typically in urgent situations, until the court makes a final decision regarding the Ward’s needs.

In Texas, one person may be appointed guardian of the person, and another person may be appointed guardian of the estate if it is in the best interest of the incapacitated person or Ward.

Texas courts follow a hierarchical approach when assigning guardianships, prioritizing family members over non-family individuals. The courts assess each case based on the best interests of the Ward, with a preference for appointing close family members who are most likely to be familiar with the Ward’s needs and circumstances.

For example, if the Ward is a minor, the courts will generally appoint guardians in the following order of priority:

• Parents
• A person the last surviving parent designates for guardianship
• The nearest ascendant to the child after the parents (usually grandparents or aunts and uncles)
• A non-relative that the court determines will satisfy as an appropriate guardian

If the Ward is an adult, guardianship will be assigned in the following order:

• The person designated by the Ward prior to the incapacity to have guardianship
• The Ward’s spouse
• A non-relative that the court determines will satisfy as an appropriate guardian

If multiple individuals are eligible for guardianship of a Ward, the court will assess each candidate and determine who is best suited to serve in the Ward’s best interests.

Filing for guardianship in Texas involves several key steps, each requiring careful attention to detail:

• Application: To initiate the guardianship process, an application must be filed in the appropriate court, typically located in the county where the proposed Ward resides. The application must include pertinent details regarding both the proposed Ward and the prospective guardian, specifying the type of guardianship being sought and the degree of the Ward’s incapacity. The application must be signed and verified before submission.
• Notice and Citation: Before filing, it is crucial to identify all parties who must be notified of the guardianship petition and ensure proper service. The proposed Ward must be formally notified of the guardianship petition, typically via service by a constable or other designated official. Additionally, the Texas Probate Code mandates that “interested persons”—such as the Ward’s spouse, siblings, and parents—be served or provide a Waiver of Service. An experienced guardianship attorney can provide invaluable guidance to ensure compliance with all legal requirements.
• Physician’s Certificate of Medical Examination (PCME): A key requirement in the guardianship process is a PCME report, which must be obtained from a licensed physician, psychologist, or advanced practice registered nurse. This report must be attached to the application and is mandated by the court. The report must be based on an examination conducted within 120 days prior to filing and must use the court’s standard form.
• Court Investigator’s Review: A statutory probate court will appoint a court investigator to conduct a thorough review of the guardianship request. Once the investigation report is complete, a hearing will be scheduled.
• Appointment of an Attorney ad Litem: The court must appoint an attorney ad litem to represent the legal rights of the proposed Ward. The attorney ad litem ensures that the Ward’s voice is heard throughout the guardianship process, advocating for their best interests. The attorney ad litem will require compensation and will meet with the Ward as soon as possible. The court may also appoint a Guardian ad Litem to represent the best interests of the proposed Ward.

• Texas Judicial Branch Requirements: FOREVER LEGAL will provide instructions for completing the background check and certification required by the Texas Judicial Branch. These steps are essential for moving forward with the guardianship process.
• Final Hearing: Once the court has all necessary documentation, the final hearing will be scheduled. At this hearing, your attorney and the attorney ad litem will present testimony and evidence to demonstrate the necessity of the guardianship. The court will determine whether the guardianship is in the best interest of the proposed Ward.
• Paying the Bond / Receiving Your Letter of Guardianship: Upon approval, most courts will require a bond to be paid before issuing the official Letter of Guardianship. This bond is a financial guarantee that the guardian will fulfill their duties responsibly.
• Annual Reporting Requirements: Once appointed, guardians are required to submit an annual report to the court detailing the Ward’s well-being and the management of their estate. FOREVER LEGAL will assist in obtaining and completing these forms.

Visit the Resource Center and discover our Guardianship Guidebook, a comprehensive resource designed to provide valuable insight and general advice to help you understand the fundamentals of estate planning. Empower yourself with the knowledge needed to protect and safeguard your legacy.