Guardianship & Special Needs Planning
Note: Guardianship is a specialized area of practice; you are highly encouraged to speak with an experienced attorney about the requirements of appointing a guardian.
Guardianship is a term used in Texas to describe the relationship between an adult, that due to the effects of aging, disease, disability or injury, need someone legally appointed to help them manage some or all of their daily affairs.
One way of doing this is the establishment of a guardianship. A guardianship is a legal relationship between the person who needs help — called a ward — and the person or entity named by the court to help the ward — known as a guardian. Because there is no automatic “legal” relationship formed because of marriage and/or some other family relationship — This is a legal relationship that has to be established by a court of law.
Guardianship affects a person’s rights, therefore it is important to know the implications of guardianship and explore other alternatives and choices before taking steps to have one established.
Guardianship relationships can be temporary or permanent. Some people need a guardian for their entire adult life because of long-term disabilities or mental incapacity due to mental illness, Alzheimer’s, dementia, etc. Others may need only need a Guardian for a temporary period as a result of a brain injury or other traumatic event.
Guardianships Fall Into Two Categories
1. Guardian of the Person: Guardian seeks to take care of the individual’s health, safety, and welfare. This is the person responsible for making sure the Ward is properly cared for, lives in a safe environment, receives adequate food, nutrition, and medications, makes sure they receive the proper medical care, etc.
2. Guardian of the Estate: Guardian seeks to take care of the individual’s finances — this person is in a fiduciary relationship with the Ward, responsible for keeping track of the Ward’s money and paying the Ward’s bills, etc.
Occasionally there is the need to seek Guardianship of the Estate for a minor child. Since a minor child can not legally manage his or her own money, this guardianship occurs when the minor child has money that needs to be managed by someone who the court finds is legally capable of handling the child’s money.
The Legal Process of Guardianship
The legal process of guardianship starts when a family member, friend or interested party (the “applicant”) files an Application for Appointment of Permanent Guardian. The application is usually filed in the county where the proposed ward resides. Along with the application, the applicant must provide documentation (A Medical Affidavit form filled out by a licensed medical doctor) stating that the Proposed Ward (person needing a guardian) was put through a thorough examination performed within the past four (4) months. This Medical Affidavit form can be obtained by an attorney who specializes in representing people in Guardianship cases. In certain cases, the physician or psychologist may be asked to testify as to the nature and degree of the proposed ward’s incapacity.
Application for Appointment of Permanent Guardian General Content
- Name, sex, date of birth, and address of the proposed ward
- Name, relationship and address of the person the applicant desires to have appointed as guardian, and
- Whether guardianship of the person or estate or both, is sought
- Mature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitations of rights requested to be included in the court’s order of appointment
- Facts requiring that a guardian be appointed and the interest of the applicant in the appointment
- Nature and description of any kind of guardianship existing for the proposed ward in Texas or in any other state
- Name and address of any person or institution having the care and custody of the proposed ward
- Approximate value and description of the proposed ward’s estate, including any compensation, pension, insurance or allowance to which the proposed ward may be entitled
- Requested term (one year or continuing) of the guardianship, if known
- Name and address of any person holding a power of attorney, if known, and a description of the type of power of attorney
- If the proposed ward is a minor:
a). whether the minor was the subject of a legal conservatorship proceeding within the preceding two-year period, and if so, where and what was the disposition; and
c). the names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased
- If the proposed ward is 60 years of age or older, the names and addresses, to the best of applicant’s knowledge, of the proposed ward’s spouse, siblings, and children; or if there is no spouse, sibling or child, the names and addresses of the proposed ward’s next of kin
- Facts showing that the court has venue over proceeding; and
- If applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of the Texas Estates Code.
The court clerk will issue a citation to be served in person on the proposed ward. If the application is filed in a Statutory Probate Court, the court will appoint a court investigator. The investigator meets with the proposed ward, attorney of record, social workers, family members and any other persons necessary to determine if guardianship is the least restrictive manner in which to handle the case.
The court investigator files a report with the court. This report is made available to the attorney of record. If the application is not withdrawn based on the court investigator’s review and recommendation, an attorney ad litem is appointed to advocate for the alleged incapacitated individual.
The attorney ad litem reviews the report furnished by the court investigator, conducts further investigation if necessary and meets with the proposed ward. A time and date for a court hearing is set and notice is issued to all interested persons, including the alleged incapacitated individual.
The proposed ward must be at the hearing unless the court determines that a personal appearance is not in the proposed ward’s best interest. The court may close the hearing if the proposed ward or the proposed ward’s counsel requests a closed hearing. The proposed ward is entitled, on request, to a jury trial.
Any person who does not have an adverse interest may contest the guardianship. This includes the alleged incapacitated person. At the hearing, the court inquires into the ability of the alleged incapacitated adult to feed, clothe and shelter himself or herself, to care for his or her own physical health and to manage his or her own property and financial affairs.
Before appointing a guardian, the court must find by clear and convincing evidence that:
- the proposed ward is an incapacitated person
- it is in the best interest of the proposed ward to appoint a guardian; and
- the rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.
The court must find by a preponderance of the evidence that:
- Court has venue or that this court is the proper court to make the determination of the necessity of a guardianship
- Person to be appointed as guardian is eligible and qualified to serve as guardian
- Guardianship of a minor is not solely to determine or change school districts, and
- Proposed ward is totally incapacitated; or is partially incapacitated, and can perform some, but not all, of the tasks necessary to care for himself or herself and manage the individual’s property.
If the court finds that the adult person possesses the capacity to care for himself or herself, the court dismisses the application.
If the court finds that the person lacks some, but not all, of the ability necessary to care for himself or herself, or to manage his or her property, the court appoints a guardian with limited powers, leaving as many decisions as possible to the incapacitated individual.
If the court finds that the proposed ward is totally without the capacity to care for himself or herself, the court includes a finding of that fact in its final order and appoints a guardian with full authority.
The order contains findings of fact and specifies powers and duties granted to the guardian and any limitations of those powers, the name of the person appointed guardian, the name of the ward, whether the guardianship is of the person or the estate or both, the amount of the bond, whether an appraisal is necessary, and gives directions to the guardian regarding the appraisal of the ward’s assets.
The bond is an insurance policy which protects the assets of the ward should the guardian’s action create financial loss to the estate. The penal amount, or dollar amount, is set by the judge in the amount that is equal to the value of the ward’s personal property plus one year’s income.
When the bond has been approved by the court and the guardian files the oath, the guardian is considered qualified, and Letters of Guardianship are issued by the county clerk.
Letters of Guardianship are evidence of the authority of the guardian to act on behalf of the ward. Letters expire sixteen months after the date of issue. The guardian may renew Letters of Guardianship of the person after he or she files an annual report of the person and the court approves that report. The guardian of the estate may renew letters after the court receives and approves the guardian’s annual accounting. The court may also require that the next year’s bond premium be paid in advance.
(Information provided by the Texas Guardianship Association)
Persons Qualified to Act as Guardian
The Probate Code dictates and prioritizes persons who are eligible to become guardians. The ward’s spouse is entitled to be the guardian before any other individual. If there is no spouse or if the spouse declines or is unable to serve, then the next of kin is the next eligible individual to serve as guardian. If more than one person is entitled to serve in the same degree of kinship, the court appoints the best-qualified person. If there is no family member willing or able to serve, the court may appoint any disinterested person, bank, financial institution, or guardianship program. The Texas Department of Protective and Regulatory Services or other agencies may be appointed as guardian for an incapacitated person who does not have a family member or friend who can serve in this capacity.
When determining who to appoint as guardian, the court will consider the incapacitated person’s best interest. The court will give consideration to the ward’s preference and may appoint this person if he or she is not disqualified. It is important to note at this point, Texas residents may designate a guardian prior to incapacity by completing a brief statutory form.
Persons disqualified to serve are:
- a minor
- a person 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
- a person indebted to the ward, unless the debt has been paid
- a person asserting a claim adverse to the proposed was or the ward’s property
- a person who, by lack of education or experience, is incapable of prudently managing the ward’s estate, or
- a person, corporation, or institution found unsuitable by the court.
It’s presumed not to be in the best interest of a ward to appoint a person as guardian if they’ve been convicted of:
- Any sexual offense
- Sexual assault
- Aggravated assault
- Aggravated sexual assault
- Injury to a child
- Abandoning or endangering a child
In short, a guardian is responsible for meeting the legal responsibilities established by the court, which may include (depending on the type and limitation of guardianship): Paying the ward’s bills; Making decisions about, and maintaining, the ward’s assets to the greatest extent possible; Ensuring the ward’s medical and living needs are met to the extent allowed by the ward’s funds and resources.
A Guardian is responsible for filing annual reports and/or annual accountings with the court appointing the guardian and is required to ask for the court’s permission and approval for many of the actions he or she will take
A guardian cannot prevent a ward from making bad decisions and choices, is not responsible for bad decisions and choices the ward may make or for illegal acts they may commit, is not responsible for personally funding the ward’s living expenses or for the ward’s past debt, cannot use force to make a ward take medication, does not personally supervise the ward around the clock, and cannot place a ward in a mental health facility.
There are alternatives to Guardianship. As stated above, laws dealing with Guardianship issues fall into a specialized area of the practice of law. You are highly encouraged to speak with an experienced attorney about Guardianships and their alternatives.