Frequently Asked Questions About
Guardianships

What is a guardianship and how do they work?  A guardianship is a court-supervised administration for a minor or for an incapacitated person.  A person -- called the guardian -- is appointed by a court to care for the person and/or property of the minor or incapacitated person -- called the ward.  In some other states, guardianships are called conservatorships, but in Texas they are called guardianships.

What types of guardianships are there?  There are two types of guardians and guardianships.  A guardian appointed to take care of the physical well-being of a ward is called a guardian of the person, while a guardian appointed to take care of the ward's property is called a guardian of the estate.  In some cases, only one type of guardian is appointed for a particular ward.  In many cases, both a guardian of the person and a guardian of the estate is appointed for a ward.  (Often, but not always, they are the same person.)

What are the definitions of "minor" and "incapacitated person?"  A minor is a person younger than 18 years who has never been married or who has not had his or her disabilities of minority removed by judicial action.  A minor is considered an incapacitated person.  An adult who, because of physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs is considered an incapacitated person.  The definition of incapacitated person also includes a person who must have a guardian appointed to receive funds due the person from any governmental source.

I think I know someone who meets the definition of an incapacitated person.  What must I do to get a guardian appointed?  Texas law has very specific procedures in place for proving the need for a guardianship and getting a guardian appointed.  These procedures are too complicated for a lay person to undertake without a lawyer's help, and most courts will not entertain guardianship applications filed by non-lawyers.  To get a guardianship, incapacity must be proven by clear and convincing evidence -- a very high standard.  Unless the proposed ward is a minor, a certificate from a doctor who has examined the proposed ward must be filed with the court.  There are specific requirements for the certificate, and it must be dated within 120 days of the filing of the application for guardianship, so you should consult an attorney for the specific requirements before the doctor conducts the examination which forms the basis for the certificate.  (Slightly different requirements apply for mentally retarded persons.)  The court will appoint an attorney -- called an attorney ad litem -- to represent the proposed ward, since the granting of a guardianship takes away some of the ward's civil rights.  Texas courts typically employ the doctrine of least restrictive alternatives in guardianship cases -- 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.

Who is likely to be appointed guardian?  If the court decides that a guardian is needed, Texas law provides a priority list for choosing the guardian.  If the ward is a minor, the following persons have priority in the following order:  parents; the person designated by the last surviving parent of the ward in a properly executed designation of guardian (see the forms section for the statutory form to do this); the nearest ascendant in the direct line of the minor (ascendants are grandparents, great-grandparents, etc.); next of kin; and a non-relative.  If the ward is an adult, the following persons have priority in the following order:  the person designated by the ward prior to his or her incapacity in a properly executed designation of guardian (see the forms section for the statutory form to do this); in some cases, the person designated by the last surviving parent of the ward in a properly executed designation of guardian (see the forms section for the statutory form to do this); the ward's spouse; next of kin; and a non-relative.  If more than one person of the same priority wishes to be guardian, the court chooses the one who is best qualified to serve.  In considering priority, it is important to note that the court has the authority to skip over a person higher on the priority list if the court finds that person to be ineligible.  A person is disqualified and ineligible to be appointed guardian if he or she is a minor; a person whose conduct is notoriously bad; an incapacitated person; a person who has certain conflicts of interest with the ward; a person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward's estate; a person found unsuitable by the court; a person specifically disqualified from serving as guardian by the ward prior to his or her incapacity in a properly executed designation of guardian (see the forms section for the statutory form to do this); and a person who is not a resident of Texas and who has not designated an agent in Texas for service of process.  Because of these priorities, it is important for an adult individual who is worried about his or her possible future incapacity to consider designating those persons he or she wishes to serve as guardian and those persons he or she wishes to disqualify from serving as guardian, especially if a non-relative is preferred (see the forms section for the statutory form to do this).

What is a guardian of the estate required to do?  It is impossible to include an exhaustive list of the duties of a guardian of the estate here.  In general, a guardian of the estate is a fiduciary and is held to the high standards to which all fiduciaries are held in caring for the estate of the ward.  The guardian of the estate is required to post a bond in an amount set by the court to assure that the guardian fulfills his or her duties.  Insurance companies issue the bond and the guardian pays the premium.  Generally the guardian is reimbursed for the cost of the premium from the ward's estate.  The guardian of the estate also is required to publish a notice to creditors in a local newspaper and file an inventory of the ward's assets.  Each year, the guardian of the estate is required to file an annual account, detailing the receipts and disbursements during the year.  This is a checkbook-type accounting -- the beginning balance, plus receipts, minus disbursements, must equal the ending balance to the penny.  When the guardianship terminates, the guardian must file a final account.  The annual and final accounts are complicated enough that a lawyer's assistance is needed. 

What are the powers and duties of a guardian of the person?  It is impossible to include an exhaustive list of the duties of a guardian of the person here.  In general, a guardian of the person is a fiduciary and is held to the high standards to which all fiduciaries are held in caring for the ward.  The guardian of the person is required to post a bond in an amount set by the court to assure that the guardian fulfills his or her duties. Unless the guardian's duties are restricted by the court, the guardian of the person is entitled to the charge and control of the person of the ward and has the right to have physical possession of the ward and to establish the ward's domicile, the duty of care, control and protection of the ward, the duty to provide the ward with clothing, food, medical care and shelter and the power to consent to medical, psychiatric and surgical treatment.  However, the guardian of the person's powers to commit the ward to in-patient psychiatric treatment are limited.  Some families pursue a guardianship only to discover that the guardian cannot force the ward to submit to in-patient psychiatric care.  Be sure to ask your lawyer about this if this is one of the main reasons for seeking a guardianship. 

All of this sounds pretty expensive.  Is it?  Yes.  Guardianship law is designed to protect the rights and interests of the ward, and it does so by establishing procedures intended to assure guardian compliance with the rules.  These procedures necessitate a lot of lawyer involvement.  Establishing a guardianship can be expensive, and the costs of administering a guardianship of the estate can easily exceed the annual income of the estate.  For this reason, it is usually a good idea to see if there are any alternatives to a guardianship before starting down the guardianship path.  Click here for frequently asked questions about alternatives to guardianships.

My loved one needs the assistance of a guardian but can't afford it.  What can be done?  Alternatives to guardianship should be considered.  Click here for frequently asked questions about alternatives to guardianships.  If no alternatives are available, some charitable organizations provide assistance for guardianships of the estate.  Check with the local bar association or with the county court or probate court in your area to see if any are active in your area.

Guardianships are complicated and expensive, but sometimes they are necessary. Contact The Karisch Law Firm, PLLC for more information.

 

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