When a person cannot manage some or all of their daily affairs, he or she may need a guardian. The incapacity can be triggered due to injury, disease, or aging. Whatever the reason may be, such a situation demands the establishment of guardianship.
In this blog, we will explain guardianship and walk you through the responsibilities and tasks of a guardian. We will cover how guardianship works in Texas and what specific laws regulate the process.
Since guardianship affects a ward’s rights, it is important to understand the relationship in detail before taking steps to establish one.
What is a Guardianship?
Guardianship is a legal relationship between a guardian and a ward. It is established by a court. A guardian is a person who is appointed to take care of a ward who is incapacitated or unable to take care of himself or herself.
According to Texas law, ‘incapacitated person’ is defined as;
- A minor
- An adult who is unable to provide for themselves, take care of their health or manage their financial affairs because of a physical or mental condition
- A person who must have a guardian appointed to receive funds from a governmental source
In Texas, the establishment of guardianship does not occur until an application is filed with a court. After a hearing, a judge may appoint a guardian if one is needed. Once the appointment is made, the person under the care of a guardian becomes a ward.
Types of Guardianships:
Texas law allows four types of guardianship programs. They are;
- Guardianship of a person: The guardian has the legal right and responsibility to provide care, food, shelter, clothing, medical treatment, and make other important decisions for the ward. The court order approves the personal rights that a ward may have.
- Guardianship of an estate: The guardian of an estate has the legal right and responsibility to manage the financial affairs of the ward. He or she is responsible for the ward’s debt, property, and bills. Even if the ward has made a will of leaving the estate to someone else, the guardian can, with court’s approval, proceed with the sale to cover living expenses or pay bills of the ward.
- Guardianship of person and estate: A court can also appoint a guardian to take care of both the ward and their property. If this happens, the guardian gains authority over all the aspects related to the ward’s care and financial affairs.
- Emergency guardianship: Sometimes, circumstances may require a court to take immediate action to protect a ward and their estate. In such an instance, the court appoints a temporary guardian, also known as an emergency guardian, to handle the circumstances.
According to Texas guardianship laws, a temporary guardian is responsible for 60 days for the ward’s care and their estate, unless it is contested in court. If temporary guardianship does not address the issues, the temporary guardian may apply for permanent guardianship.
Who can be a Guardian?
Guardians have certain legal responsibilities that they are required to perform as per the court’s order. The court decides how much freedom a ward may have to make his or her decisions. When appointing a guardian, the court takes several factors into account. Some of these include:
- Preference is given to an immediate family member as a guardian rather than programs like the Child Protective Services or Adult Protective Services.
- A person designated by adult ward before the incapacity
- The court can also disqualify a guardian based on criminal convictions
- Being indebted to the ward is also a reason for the disqualification of a prospective guardian.
Process for Appointing a Guardianship:
To become a permanent guardian, the applicant applies to the court. The applicant provides documentation that confirms the ward’s incapacity by a psychologist or physician licensed in Texas.
The court appoints attorney ad litem, who represents the prospective ward. A hearing is held where the ward and the prospective guardian are present. Texas guardianships law requires clear evidence that:
- The proposed ward is indeed incapacitated
- Guardianship is in the interest of the ward
- The rights of the ward are protected by the guardianship
- The prospective guardian is eligible to serve as a guardian
If the proposed ward can perform some, but not all, of the tasks necessary for their protection, the court may limit the powers of the guardian. The court can also dismiss the application of guardianship if it determines that the proposed ward can take care of themselves.
Being appointed as a guardian of an incapacitated person carries a lot of responsibility. The guardian must fulfill legal requirements and satisfy the court regarding the care and protection of the ward. Since guardianships take some, if not all, of the rights of a ward, it should be the best and la