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 principle 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 as 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 estate planning 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 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 guardianship 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.
What Is The Definition Of A Legal Guardian?
Most of us have heard the term “guardian” before and we have probably used it in a conversation with friends or family. Most people generally understand the meaning of a “guardian”. However, for those that do not know, a guardian is an adult who assumes responsibility for the care of a minor child, or in some cases another adult.
As a guardian, a person can be authorized to make legal, financial, and healthcare decisions for the ward (or the person they are caring for). The guardian’s role will depend on the court’s order. In the case of minor children, the guardian may also have the right to enroll the children in school. These are the most common rights that parents and guardians have. A guardian will also have to provide things such as food, shelter, and clothing as part of being the primary caretaker of their ward.
After being appointed by the court, the guardian must file an oath and bond to be eligible to act as guardian. The court will issue letters of guardianship once the guardian is qualified. These letters serve as legal proof that the guardian can act on behalf of the ward. The guardian will need to report annually to the court about the ward’s health, living arrangements, and general well-being. The guardian must keep a detailed report detailing every income and expense made for the estate.
If you are considering guardianship, speaking to an experienced guardianship attorney is very important. They may be able to help answer your questions about the roles and responsibilities as well as the limitations of a legal guardian. Contact the Law Office of Whitney L. Thompson today to schedule a consultation.
Different Types of Guardianship in Texas
Texas offers four types of guardianships:
Guardian of the person, partial or full: The guardian provides care, supervision, and food for their ward.
Guardian of the estate, partial or full: The guardian manages the financial and property affairs of their ward.
Guardian of the person or estate: The guardian manages the care and property of their ward.
Temporary/emergency guardianship: This temporary guardianship is in effect until the court’s decision.
Texas law allows only one person to be appointed guardian for a person or estate. However, one person can be appointed guardian for a person, and another person can be appointed guardian for the estate if it’s in the best interests of the incapacitated person/ward.
Modification, Restoration, and Termination of Guardianship
In some cases, a ward can regain at least some of his or her abilities. This situation can lead to the court modifying the guardianship. Before a modification is granted, the court will first determine what abilities the incapacitated person is able to recover. If the court deems that the person is able to control a portion of their life, a modification to the guardianship may be allowed. For example, if the ward is able to manage his or her finances, then he or she may be allowed to make decisions about their finances but still allow his or her guardian to manage other aspects of their life.
When the ward regains capacity, the court can also grant them to have his or her decision-making rights restored and terminate the guardian’s authority to make decisions on behalf of the ward. To allow the ward to regain the ability to make decisions on their own, the evidence must be provided in court that the person has recovered and regained capacity.
The court can also order the termination of guardianship. Terminations can be due to the restoration of the ward’s rights or because of other conditions such as the death of the ward.
The actual procedure for petitioning for guardianship and asking to modify or terminate the guardianship can be complicated. If you have any questions about guardianships in Texas, it is important to speak to your estate planning attorney.
How do Courts Appoint a Guardian?
Texas courts give guardianships by using a top-down approach that favors family members over non-family individuals.
If the ward to be guarded is a minor, the courts will order guardianship in the order of:
- The last surviving parent designates a person for guardianship
- The closest ascendant to the child after the parent (usually grandparents, aunts, or uncles).
- A guardian who is not related to the child, as determined by the court.
If the ward is an adult, Guardianship will be in the following order:
- The guardian appointed by the ward prior to their incapacity
- The spouse of the ward
- A guardian who is not related to the person, as determined by the court.
If guardianship is granted to more than one person, the court will determine who the best choice will be for the ward.
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 Houston estate planning attorney contact Whitney L. Thompson, esq. at (281) 214-0173.