Guardianship is a legal proceeding in which the court gives a responsible party (usually a family member) full or partial decision making-power (authority) for an adult to make decisions on behalf of an incapacitated person (the ward). There are two types of guardianship in Texas—guardianship of the person and guardianship of the estate. The guardian of the person must provide care for the ward to the extent provided by law. The guardian of the person must act to protect and preserve the ward’s person whereas the guardian of the estate oversees the ward’s finances. The best interests of the ward is the guiding principal in creating both a guardianship of the person and a guardianship of the estate.
When children with disabilities near the age of adulthood their parents must take the proper measures to appoint themselves or another trusted individual the guardian of their child. In Texas, when a child is under 18, parents have the legal authority to make decisions on that child’s behalf. However, when that child turns 18 years of age, the authority ceases. To obtain guardianship, the parent or other third party must file a petition with the probate court in which the ward resides. Courts will always seek to keep the incapacitated person as an independent person. Therefore, courts often assign guardians over certain areas of a ward’s life and not others.
It is highly advised that you work in conjunction with a knowledgeable and experienced attorney if you are a parent petitioning for guardianship over your adult child. The petition for guardianship is itself complicated. You will be required to describe the specific areas in which your child needs supervision. These can include whether your child can bathe himself, feed himself, drive or make decisions about money. The court may very well ask you to demonstrate that you have looked into a less formal support than guardianship. These supports include: (i) using joint bank accounts or becoming a representative payee to help your child to pay bills or to manage money; (ii) a supported decision-making agreement to assist your child in making decisions about areas of life such as education, living arrangements, health care, finances, etc.; and (iii) creating special needs trusts and savings accounts. You and your lawyer would then take all this information to the court and file a petition for guardianship.
Once your attorney files your petition with the court, the judge will assign an attorney ad litem. The attorney ad litem is an attorney whose function is to represent your child in the guardianship process and promote solutions that are in the child’s best interests. An attorney ad litem is charged with determining whether a guardianship is needed or if other services could meet your child’s needs. The attorney ad litem will speak with your child about his or her understanding of guardianship law and determine what your child desires. The attorney ad litem will also review other relevant information in making his or her recommendation, including reviewing medical records, and speaking with teachers, neighbors, family and friends. Once the attorney ad litem has gathered and synthesized all this information, he or she will participate in the court hearing on behalf of your child. The court will then decide whether to issue guardianship.
Additionally, you will need to renew the guardianship every year by filing a report with the court. If your child is turning 18 and will need a guardian once he or she becomes of age, it is essential to retain an attorney well-versed in guardianship law. You want to be prepared in order to organize and submit the strongest evidence in your petition and in your yearly reviews to guarantee that your child’s best interests are served. To speak with a knowledgeable, experienced attorney contact Whitney L. Thompson, esq. at (979) 318-5079.