When a loved one becomes unable to manage their affairs due to age or disability, it’s understandable for family members to want to take over in taking care of their responsibilities to alleviate their stress and burden. In such situations, petitioning for the legal authority to manage an incapacitated loved one’s affairs may be the sensible option.
Obtaining legal guardianship in Houston involves complicated procedures and a thorough understanding of Texas laws. To avoid any complications that might put you and your loved one at risk, seeking the assistance of a skilled Houston uncontested guardianship lawyer can help shed some light on the process and provide you with peace of mind that your guardianship will be handled competently. Our experienced Houston guardianship attorneys at the Law Office of Whitney L. Thompson are here to guide you through the process of filing for guardianship for your loved one.
Contact us today at (281) 214-0173 to schedule a consultation.
Uncontested guardianship cases are instances in which no one opposes the appointment of a legal guardian for a minor child, an adult with special needs, or an incapacitated adult. In an uncontested guardianship, everyone who has ‘standing’, that is, a person with a vested interest in the matter, has been notified of the choice of guardian and agrees with the choice. An uncontested guardianship also means that the interested parties are at a consensus regarding the incapacitated party’s inability to manage their affairs without assistance.
In a contested guardianship, either or both the choice of guardian and the degree of incapacity may be disputed by the interested parties which can complicate the proceedings and prolong the appointment of a guardian or deny the appointment entirely. Due to disputes regarding the appointment, there can be additional litigation which can cause more conflicts in the family.
The appointment of a guardian in an uncontested guardianship may take less time as long as the court investigator in charge of conducting background checks on the prospective guardian gives the go-ahead and the court decides that everything is in order. Overall the process of appointing a guardian in Texas can be deceptively simple. A person files an application for guardianship in court, a hearing is conducted before a judge, and a judge will review the case and appoint a guardian if they determine that it is necessary in the case. However, there are specific background checks that are required to ensure that the guardian would have their best interests in mind.
The complicated process and extensive checks and balances required by guardianship law is necessary to ensure that a capable person would not be stripped of their independence and that only a person who has the qualifications to become a responsible guardian would be selected.
Guardianship requires the guardian to act in a fiduciary capacity over another person, meaning they are expected to act in the best interests of the ward. The guardian will hold a significant degree of power over the ward and thus must act in a way that exudes trustworthiness and reliability. A guardian can be a family member, a trusted individual, or an organization.
There are two types of guardians as defined under Section 1002.012 of the Texas Estates Code:
Upon appointment, the guardian will be given the legal authority to manage the affairs of the ward. The Texas Estates Code, Chapter 1151 lists all of the powers a guardian will be granted and the duties they are expected to perform.
These include but are not limited to the following actions:
There are also strict regulations on who cannot become a guardian according to Texas law.
Individuals who cannot become a guardian include the following:
The court is expected to exercise discretion regarding the acceptance and rejection of guardianship petitions. If the ward was able to make a preference before they became incapacitated, the court will give consideration to their choice.
To avoid potential issues, the ward will still retain some rights as listed under Section 1151.351 of the Texas Estates Code. The ward has the right to retain a copy of the court orders pertaining to their guardianship and to be informed of the contact information for authorities they can reach if they have any complaints regarding the guardian’s treatment of them. The ward and concerned third parties can also report instances of abuse if the welfare of the ward is being put in jeopardy.
The ward also retains their rights to vote, marry, and obtain a license to drive unless restricted by the court. They can also keep contact and enjoy private visits with people they choose unless the guardian determines that the visits serve to the detriment of the ward’s wellbeing. Ultimately, wards deserve to be treated with utmost respect and dignity despite their minority or their incapacity.
If the guardian does not respect these rights of the ward or exercises their authority in excess, they may face challenges to their guardianship. It is important to remember that guardians are to act in a fiduciary capacity concerning the ward’s estate and person and this will be monitored by the court. Guardians are required to submit annual reports containing an accounting of the ward’s estate and any expenses incurred. Guardians are also expected to provide a report regarding the ward’s well-being.
Even before you are appointed as a loved one’s guardian, you would need the help of a skilled Houston uncontested guardianship attorney to establish the legal basis of why you should be granted the appointment. Our competent attorneys at the Law Offices of Whitney L. Thompson may be able to assist you in filing the necessary pleadings as well as notifying the interested parties of your intent and petition to become a guardian. We can help you understand your rights and the responsibilities expected of you once you are appointed.
To learn more about how we can help, contact us today at (281) 214-0173.
Qualified and interested parties may file an Application for Appointment of Permanent Guardian in the county where the ward is residing. In addition to the application, the applicants for guardianship should also include a Certificate of Medical Exam from a physician who can attest to the ward’s degree of incapacity.
Applicants in an uncontested guardianship may also be subjected to a background check including a review of their criminal records to ensure that they have not been convicted of wrongdoing that would disqualify them from being a good candidate. This also includes going through any evidence that they may break their fiduciary relationship. Interested parties would be given notice about the applicant’s petition and the ward would be officially served the court orders by a sheriff or a constable.
Close family members of the ward may be required to sign waivers and serve the court orders through certified mail. The public will also be informed about the guardianship through a general notice. The appointment of an Attorney Ad Litem, a lawyer appointed to represent the interest of the wards in guardianship cases, will also be done by the court. It is the Attorney Ad Litem’s responsibility to protect the rights of the ward, communicate their goals, and investigate the circumstances of the application to ensure that the ward’s best interests are protected. The Ad Litem can also advocate for and advise the ward on how to achieve their goals regarding guardianship.
Guardianships can often become permanent and are often seen as the last resort when it is necessary to protect an individual. Often, there are other options recommended before the guardianship process is initiated. If circumstances change, a judge can reevaluate the case and decide whether guardianship is still necessary.
To appoint a guardian, the Court requires certification by a physician confirming the person’s incapacity. Additionally, the Court must determine if there are any other feasible alternatives to guardianship and if guardianship is the least restrictive option available. In situations where the incapacitated person can comprehend the circumstances, they can execute a Statutory Durable Power of Attorney, which grants someone else the power to make business, legal and financial decisions, as well as a Health Care Power of Attorney, which allows someone else to make medical decisions. In instances where the individual lacks the mental capacity to understand such documents, there may be alternative, less restrictive options available that can be explored.
When a proposed guardian initiates the guardianship process, the Attorney Ad Litem and the court may deem the ward’s degree of incapacity to be more capable and may suggest other forms of oversight instead. It is important to remember that guardianship can often be a permanent and drastic choice. Even an appointed guardian may second-guess the choice and will seek the advice of experienced estate planning professionals for appropriate alternatives.
Depending on the need and the preferences of the ward themselves, the ward can choose to assign an agent who will act on their behalf by establishing a power of attorney document or an advance directive. These two documents reflect the wishes of the ward and may be honored by the court unless a drastic change in the well-being or the circumstances of the ward’s care occurs.
With a Durable Power of Attorney, a person (referred to as a principal) can appoint someone they prefer (the agent) to make decisions on their behalf. Compared to a General Power of Attorney, a Durable Power of Attorney can remain in effect even if the principal gets incapacitated. Compared to guardianship which can be more restrictive, the principal can list which actions their agent is authorized to act upon on their behalf.
A Medical Power of Attorney allows an individual to make decisions on their health care in the event that they become incapable of making decisions for themselves. Powers of Attorney are very useful tools in estate planning that can allow an individual the ability to reclaim a sense of control over what happens to them when they become incapacitated.
Getting the help of an attorney who is not only familiar with the process of guardianship but also with estate planning law can give you the assurance you need that you are doing the right thing for the ward.
If you are an individual who would like to prepare for the contingency that you become incapacitated in the future, a skilled attorney can review your estate plan and work with you in determining whether or not making preparations for guardianship is the best option available for you. An estate planning lawyer can also help you create a Durable and Medical Power of Attorney if it suits your estate planning goals and personal circumstances better.
The Law Offices of Whitney L. Thompson is a law firm dedicated to providing Texas residents with quality estate planning services and counsel. We may be able to help guide you through the guardianship process in Houston and provide you with assistance in other estate planning needs such as the creation of wills, trusts, powers of attorney, and more. Led by top-rated Houston uncontested guardianship lawyer, Whitney L. Thompson, our team of experienced legal professionals can help you make informed decisions and meet your estate planning goals.
Contact us today at (281) 214-0173 to schedule a consultation.