Adult Guardianships in Texas
Guardianship is the legal process by which someone who is incapacitated due to a physical or mental condition can be taken care of by another person. The incapacitated person is called the “ward" and the person assigned to take care of them is called the “guardian."
Texas law defines an incapacitated person as an 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. During the guardian process, a doctor treating the incapacitated person must submit a letter to the court describing the mental or physical basis for the incapacity, and the extent of the incapacity. The doctor must answer questions concerning the incapacitated person’s ability to drive, vote, enter into a contract, handle money and other acts.
Texas law sets out rules on who may serve as a guardian. The proposed ward’s spouse has first priority to serve, followed by a person nearest of kin, or any person best qualified to serve in the opinion of the court. People disqualified to serve as guardians include people under the age of 18, people whose conduct has been notoriously bad, incapacitated people, people who owe the proposed ward money, people asserting claims adverse to the proposed ward’s property, inexperienced or uneducated people, or people that the court finds unsuitable.
There are 2 types of guardianships: guardianship of the person, which means taking care of the ward’s physical well-being, and guardianship of the estate, which means taking care of the ward’s property. Usually both the duties are performed by the same person and the legal procedure is the same:
The applicant who wants to become the guardian, files an application stating reasons why a guardianship is necessary. This is accompanied by the doctor’s letter describing the proposed ward’s incapacity.
The application is served on the proposed ward, the proposed ward’s spouse, the proposed ward’s parents, the proposed ward’s adult siblings and the proposed ward’s adult children. Quite often, these people sign and file a waiver of service rather than actually being served.
Once the court receives the application, the court appoints an attorney ad-litem to represent the interests of the proposed ward. The attorney ad-litem conducts an investigation relating to the facts specified in the application, and meets with the proposed ward.
A hearing date is set where the applicant, proposed ward, and attorney ad-litem are present. If the court determines that a guardianship is necessary, it issues an order containing findings of fact and specifying powers and duties granted to the guardian.
If a guardianship of the estate is granted, the guardian may have to get a bond to protect the assets of the ward should the guardian’s action cause the ward any loss. The bond has to be approved by the court.
The county clerk issues letters of guardianship that allow the guardian to act on behalf of the ward.
Guardians have to file annual reports and accounting with the court
Guardianships can be quite expensive, depending on the circumstances. Usually, the applicant needs to pay their own attorney fees and the fees for the attorney ad-litem as well. However, there are some alternatives that may be useful.
Durable Power of Attorney. A durable power of an attorney is a document in which you can name an authorized agent to undertake business or legal matters on your behalf. A durable power of attorney may be drafted so that it only takes effect if you are incapacitated or unavailable.
Designation of Guardian in Advance of Need. This document allows you to name a guardian for yourself in case of incapacity or for your minor children in case something happens to you, and also allows you to disqualify people who you do not want to serve as your guardian.
Please keep in mind that we have only discussed adult guardianships in this article. Quite often we see parents that have to apply for guardianships of their incapacitated children when the children turn 18, especially if the children were receiving assistance from a government agency.