What is guardianship?
In the event that an individual becomes incapacitated and can longer care for herself or manage her financial affairs, a court may appoint a legal representative (the guardian) to take on these responsibilities on behalf of the incapacitated person (also known as the “ward”). A guardianship is essentially when a a court appoints a legal representative to to manage the financial affairs and/or day-to-day needs of the ward.
What are the different kinds of guardianships in Texas?
There are two types of guardianships in Texas: guardianship of the estate and guardianship of the person. A guardian of the estate is responsible for managing the property and financial affairs of the ward. A guardian of the person is generally responsible for providing care, supervision, food, clothing, and shelter for the incapacitated person, and may also consent to medical treatment on her behalf. An individual may be appointed either guardian of the person or guardian of the estate, or both, depending on the needs of the incapacitated person.
Under what circumstances can a person be appointed a guardian in Texas?
A guardian is appointed only in the event that a court finds that an individual is an incapacitated person. Texas law defines an “incapacitated person” as:
(1) a minor; or
(2) “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs”; or
(3) “a person who must have a guardian appointed to receive funds due the person from any governmental source.”
Because appointment of a guardian removes so many rights of the ward, courts will usually try to limit a guardianship and the rights removed from the proposed ward as much as possible.
Who can be appointed guardian?
When the proposed ward is an adult, courts generally give preference to individuals designated in advance by the proposed ward (see below). If no such designation is made in advance, the proposed ward’s spouse has preference or, if there is no spouse, next of kin have preference.
Texas law specifically disqualifies the following individuals from serving as guardian:
- minors;
- persons whose conduct is notoriously bad;
- an incapacitated person;
- a person who is a party or whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward;
- an individual who is indebted to the proposed ward unless the person pays the debt before appointment;
- a person asserting a claim adverse to the proposed 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; or
- a person, institution, or corporation found unsuitable by the court.
How is a guardian appointed?
A guardianship can be initiated in two ways: a court may initiate a guardianship upon a probable cause finding that a person is incapacitated and does not have a guardian; or, more commonly, an individual may files application with the court in the county in which the ward resides. The application must meet specific statutory requirements. If the proposed ward is an adult, Texas also requires current medical evidence of the proposed ward’s incapacity. Thus, the application should be accompanied by a certificate of medical exam (CME). Many Texas courts, including the Travis County Probate Court in Austin, require the physician to complete a specific CME form.
Can I designate my own guardian in case I ever need a guardian?
Yes. An individual may pre-designate a guardian of the estate and a guardian of the person in the event of incapacity by completing a Designation of Guardian in Advance of Need. While judges are not required to abide by the pre-designation, they do give it significant weight. If a designation is not made in advance, the individual’s spouse and, then, next of kin have priority for appointment as guardian.
As you may have gathered, the process of appointing a guardian can be complicated. If you have additional questions about guardianship in Austin or surrounding areas, contact me.
