Guardianship

Guardianship 2017-03-20T15:12:30+00:00

GUARDIANSHIP

What is a guardianship?

Guardianship is a court-supervised administration of a person who is incapacitated. A person is “incapacitated” if the person (1) is a minor; (2) is an adult who, because of a physical or mental condition, is substantially unable to (a) provide food, clothing, or shelter for himself or herself; (b) care for the person’s own physical health; or (c) manage the person’s own financial affairs; or (3) must have a guardian appointed for the person to receive funds due the person from a governmental source. A “minor” means a person younger than 18 years of age who: (1) has never been married; and (2) has not had the disabilities or minority removed for general purposes. The “guardian” is the person appointed by the court to handle the affairs of the incapacitated person (the “ward”). Texas courts try to use the least restrictive alternatives in guardianship cases, that is, taking away as few of the ward’s rights as possible and giving the guardian only those rights and powers as is necessary to protect the ward or the ward’s property.

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Are there different types of guardianship?

Yes. Guardianships are either “of the person” or “of the person’s estate”. Usually, the same person is the guardian of the person and of the person’s estate, but sometimes there may be two guardians. A guardianship may be full or limited and may be temporary or permanent.

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Is a guardianship expensive?

Yes. A guardianship is a restrictive and expensive process. It is restrictive in the sense that the guardian essentially handles most, if not all, actions on behalf of the ward and the ward may lose certain rights, such as the right to drive a car, vote or marry. It is expensive because it requires the guardian to provide a bond and file reports with the court concerning the condition of the ward and the ward’s estate and also requires the appointment of an attorney ad litem to represent the proposed ward until such time as the court determines whether a guardianship is appropriate.

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What needs to be proved for a guardianship?

The Texas Estates Code has specific procedures for guardianship cases. In order to get a guardianship, it must be proved by clear and convincing evidence that (1) the proposed ward is an incapacitated person; (2) it is in the proposed ward’s best interest to have the court appoint a person as the

proposed ward’s guardian; and (3) the proposed ward’s rights or property will be protected by the appointment of a guardian. Other allegations must be proved by a preponderance of the evidence, including that the proposed ward (a) is totally without capacity to care for himself or herself and to manage his or her property, or (b) lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage his or her property.

If the proposed ward is not a minor, he must be examined by a qualified physician who examines the proposed ward and files a letter or certificate within 120 days before the filing of the application for guardianship. The letter or certificate must include certain findings as required by the Texas Estates Code.

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Who can be appointed as a guardian?

If a guardianship is required and the proposed ward is a minor, if both parents live together then both parents are the natural guardians of the minor child by the marriage, and one of the parents is entitled to be appointed guardian of the child’s estate. If the parents cannot agree as to which parent should be appointed, the court shall make the appointment on the basis of which parent is better qualified to serve in that capacity. The rights of parents who do not live together are equal. The court shall assign the guardianship of the minor child to one parent considering only the bests interest of the child. If one parent is deceased, the surviving parent is the natural guardian of the minor child and of the child’s estate. After that, the guardian will be appointed in the following order: (1) the person designated in writing by the last surviving parent of the ward; (2) the nearest ascendant in the direct line of the minor (ascendants are grandparents, great-grandparents, etc.); (3) next of kin; and (4) a non-relative.

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What can a guardian do?

A guardian is responsible for doing the obligations imposed by the court. A guardian is a “fiduciary” and must be held to the highest standards on behalf of the ward and the ward’s estate. This means the guardian must place the interests of the ward above all other interests. Unless the duties are otherwise restricted by the court, the guardian of the person will take charge and control of the ward, including the right to determine the ward’s residence, and the duties to provide the ward with food, clothing, shelter, and medical care.

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Are there alternatives to guardianship?

Yes. These alternatives include using representatives or substitute payees, trusts, durable powers of attorney for property, medical powers of attorney, and creating joint financial accounts.

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