Guardianship

In Texas, when an adult individual becomes incapacitated, they may need a guardianship.  Incapacity is when an adult individual, because of a physical or mental condition, is unable to substantially provide food, clothing, or shelter for himself or herself, to care for their own physical health, or to manage their own financial affairs.  The purpose of guardianship is to protect and care for an incapacitated individual while encouraging the development or maintenance of maximum self-reliance and independence.

The process for obtaining a guardianship is as follows:

(1) A written application must be filed in statutory probate court.  In counties with no statutory probate court, guardianships shall be filed in county court;

(2) A written letter from a physician licensed in Texas must be filed;

(3) Notice and citation must issue;

(4) An attorney ad litem is appointed, and depending on the circumstances, a guardian ad litem may also be appointed;

(5) The person requesting a guardianship must be qualified to serve as guardian; and

(6) A court hearing will be held to determine the guardian.

 

The guardian must be qualified to serve.  Examples of reasons why a guardian may not be qualified to serve are:  notoriously bad conduct, incapacity, is indebted to the adult individual, or has a claim adverse to the adult individual.  Depending on the circumstances, the court may appoint a Guardian of the Person or a Guardian of the Estate, or both.  Once a guardian is appointed, and has qualified by taking an oath and filing a bond, then Letters of Guardianship will be issued to the guardian.  The guardianship is under court supervision for as long as it exists, and requires the guardian to file annual reports with the court.

You may execute a Declaration of Guardian for yourself and your minor children.  This declaration allows you to express your preference of who you wish to serve as your guardian.  Perhaps more importantly, it also allows you to express who you do not wish to serve as your guardian.

Guardianship is different than a Statutory Durable Power of Attorney and a Medical Power of Attorney.  A guardianship is a legal proceeding that removes certain rights from an adult individual and authorizes a guardian to make decisions regarding those rights on behalf of the adult individual.  The adult individual no longer has the authority to make decisions regarding those rights.  A Statutory Durable Power of Attorney is an out-of-court document executed by a principal that grants authority to an agent to act on behalf of the principal.  The principal still retains the authority to act on his or her own behalf.   A Medical Power of Attorney is an out-of-court document executed by a principal that grants authority to an agent to make medical decisons on behalf of the principal, only if the principal is unable to understand and express his or her wishes regarding the medical decisions.

Texas is a mandatory reporting state.  Texas law says anyone who thinks a child, or person 65 years or older, or an adult with disabilities is being abused, neglected, or exploited must report it to Department of Family and Protective Services. A person who reports abuse in good faith is immune from civil or criminal liability.  You may report abuse, neglect or exploitation:

•By Phone: 1-800-252-5400

•Online: Texas Abuse Hotline

Call 911 immediately if you have an emergency or life-threatening situation.