Guardianship
Texas Guardianship Law
What is a Guardianship? A Guardianship is authority over the person or estate, or both, granted by a court to a person for the benefit of an incapacitated individual, known as a ward. Two examples of an incapacitated person would be a person incapacitated by being underage, under age 18, and second, a person incapacitated because he or she cannot care for themselves or their property due to some illness or other mental deficiency. A qualified Dallas guardianship attorney can help you navigate this complicated process to provide certainty in a tough situation for any family.
The guardianship of the underage person is necessary in the situation where both parents have died before the child or children. The law regards the underage person as incapacitated as a protection for her, because she cannot enter into contracts, obtain housing, or healthcare without an adult to help. The choice of who would serve as the guardian of a young person is often made by the parent in a will, but the preferences of the child will be considered by the court.
In the case of an incapacitated adult, a guardianship is necessary for children with disabilities that are becoming adults. Children with mental incapacity, such as Downes Syndrome or developmental deficits will require a guardian to care for their personal and financial needs for their entire adult life after age 18. This challenge often comes to light when such a person is in need of medical care, and while he is now an adult, he cannot communicate, nor can he give consent for a doctor to provide necessary care. It is essential for parents with children in this situation to plan for this eventuality with the help of a qualified Dallas guardianship attorney.
The other very frequent incapacitated adult is the elder member of a family now diagnosed with Alzheimer’s disease, dementia, or other infirmity that affects their memory or intellectual functioning. This person may even avoid a guardianship with careful advance planning. Interestingly, a powerful planning tool for any adult who may anticipate conflict in their family is the Choice of Guardian, which is a written document that specifically disqualifies a person before the need for a guardian arises. In other words, if Dad does not trust his nephew, Larry, Dad may sign a Choice of Guardian stating that he disqualifies Larry from serving as the guardian of his person or his estate.
However, even with every planning document in place, if the family members have conflict over the choices made by the now incapacitated parent, this conflict will find its way to a guardianship proceeding. But that written Choice of Guardian, made when you are in good health and feel great can be strong evidence of your preference to the court.
In order to obtain a guardianship of the person or estate, or both, of an incapacitated adult, the applicant must have standing to do so, and must present a “doctor’s letter” describing the nature and extent of the proposed ward’s incapacity. This doctor’s letter will address functional deficits of the person in need of assistance concerning personal and business management, medical decisions, financial matters, driving ability, where to live, ability to vote, and whether to marry, among other factors. Texas Estates Code section 1101.103. Most courts require that the doctor’s letter be in a particular form.
There are many reasons a person may be disqualified to serve as a guardian. Some of the more usual reasons an applicant is disqualified as the guardian of a person or of a person’s estate are that the applicant owes the proposed ward money, has a felony conviction, or is too inexperienced to manage another person or their estate. Texas Estates Code sections 1104.351 and following.
After a court creates a guardianship, the guardian is granted Letters of Guardianship of the Person, which is a document that is evidence of the guardian’s authority over the ward. The court then maintains oversight of the ward and their affairs at least annually. The guardian must report annually on the persona status of the ward. An Annual Report of the Person is required and is filed with the court in order to renew those very important Letters of Guardianship of the Person.
Additionally, the guardian must report annually by providing an accounting on the status of the ward’s estate, meaning the ward’s property and money. Letters of Guardianship of the Estate will only be renewed by the Court if the accounting balances to the penny.
As you can see, you should discuss the need for a guardianship with a qualified Dallas guardianship attorney to make these important plans.
A guardianship is a court created relationship that appoints a guardian to protect a minor or other person that is not capable of taking care of themselves or their finances. Having the right attorney will protect the interests of the object of the guardianship, known as the ward. To learn more about the laws concerning guardianship in the state of Texas visit our Guardianship And Texas Family Law page.