How is a Guardianship Determined?

Because the courts call guardianship “a massive curtailment of liberty,” it’s important that guardianship be used only when necessary.  Most courts use it only as a last resort.

The Pauls Valley Democrat’s recent article asks, “Guardianship – What is sufficient incapacity?” As the article explains, courts must be certain that an individual is truly “incapacitated.”

For example, Oklahoma law defines an incapacitated person as a person 18 years or older, who is impaired by reason of:

1. Mental illness;
2. Intellectual or developmental disability;
3. Physical illness or disability; or
4. Drug or alcohol dependency.

Texas law defines an incapacitated person as:

1. a minor;
2. an adult who, because of a physical or mental condition, is substantially unable to:
   1. provide food, clothing, or shelter for himself or herself;
   2. care for the person’s own physical health; or
   3. manage the person’s own financial affairs; or
3. a person who must have a guardian appointed for the person to receive funds due the person from a governmental source. Texas Estates Code, Title 3

In addition, an incapacitated person’s ability to receive and evaluate information or to communicate decisions is impaired to such a level that the person (i) lacks capacity to maintain health and safety; or (ii) is unable to manage financial resources.

A person who is requesting to be appointed guardian by the court must show evidence to prove the person’s incapacity. This evidence is typically presented with the professional opinion of medical, psychological, or administrative bodies.

In some instances, a court may initiate its own investigation with known medical experts. In these cases, the type of professional chosen to provide an opinion should match the needs of the person (the “ward”), who will be subject to guardianship.

The court will receive this evidence and if it’s acceptable, in many cases, require that the experts provide a plan for the care and administration of the ward and his assets. This plan will become a control measure, as well as guidance for the guardian who’s appointed.

These controls will include regular monitoring and reports of performance back to the court.

Reference: Pauls Valley Democrat (Jan. 23, 2020) “Guardianship – What is sufficient incapacity?”