Guardianship And Texas Family Law

Guardianship and Texas Family Law


Question: What is a guardianship?

Answer: A guardianship is a court created and monitored relationship between a person appointed by the court as a guardian and an incapacitated adult or a minor child with no living parents. This relationship is governed by the Guardianship provisions of the Texas Probate Code.

Question: What is required to obtain a guardianship of an incapacitated adult?

Answer: The person who has allegedly lost their mental capacities is referred to as the proposed ward. In order to obtain a guardianship of the person or estate of an incapacitated adult, or both, 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 incapacityTexas Probate Code section 687.

Most courts require that the doctor’s letter be in a particular form. As an example, see The Dallas County Physician’s Certificate of Medical Examination.

Question: What is a doctor’s letter in a guardianship case?

Answer: In order to obtain a guardianship of the person or estate of an incapacitated adult, or both, 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 incapacityTexas Probate Code section 687..

Most courts require that the doctor’s letter be in a particular form. As an example, see The Dallas County Physician’s Certificate of Medical Examination.

Question: What disqualifies a person from serving as the guardian of a person or a person’s estate?

Answer: 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.Texas Probate Code section 681.

Additionally, the proposed ward may specifically disqualify a person through a written document signed before the need for a guardian arises. Texas Probate Code section 679.

Question: What is a Choice of Guardian in Case of Need?

Answer: This is a document in which you mat choose who would care for your person and your estate (your money and property), in case you need that at some point.  Having powers of attorney and advance directives can reduce or eliminate the need for a guardianship.  Additionally, with this document, you may specifically disqualify someone by stating that you do not want them to serve as your guardian.

 

Question: May a surviving parent be the guardian of their minor child?

Answer: The person who is not an adult, and incapacitated only by age is referred to as the proposed ward.  In order to obtain a guardianship of the person or estate of a child the applicant must have standing to do so.  Pursuant to Texas Estates Code Sections 1104.051(c), the surviving parent “is entitled to be appointed guardian of the minor children’s estates”.    Further, when one parent is deceased, “the surviving parent is the natural guardian of the person of the minor children”.  Id.

 

Question:Who may be named as a guardian of a minor child?

Answer: A surviving parent according to Texas Estates Code Sections 1104.051, or one of the parents in the event the parents do not live together.  In that case, the court determines which parent should be named as guardian in the best interest of the minor child.

If there are no surviving parents, then a person designated in a will of the parent may be named as guardian of the minor child or children. Texas Estates Code Sections 1104.053.  If the parents had no will, or named no guardian for their children, then a relative, the “nearest ascendant” is entitled to serve as guardian. Texas Estates Code Sections 1104.052.  Additionally, however, if the minor child is aged 12 years or older, the court may consider a selected person of the child, if the “person selected is suitable and competent; and the appointment of the person is in the minor’s best interest”, Texas Estates Code Sections 1104.054.