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Brief Primer on Guardianship

Posted by attorney Jessica Hanzlik

Guardianship is the legal process necessary when someone cannot act for themselves and a guardian is appointed for the individual (also called a “ward") to handle the ward’s personal affairs including medical and financial decisions. Most guardians are appointed for minor children, persons judged mentally incompetent or are physically unable to care for themselves. There are several common types of guardianships:

· Guardian of the Person: powers and duties of this guardian includes the right to have physical possession of the ward and establish their legal domicile; provide care, supervision and protection for the ward; provide the ward with clothing, food, medical care and shelter; power to consent to medical, psychiatric and surgical treatment;

· Guardian of the Estate: the guardian is entitled to possess and manage all assets of the ward, to collect all debts and claims of the ward, bring and defend all suits by or against the ward and prudently manage the ward’s property.

· Interim Guardian: the guardian is temporarily appointed after the initial guardian is removed or resigns.

· Emergency Guardian: the guardian is appointed by a Court without a formal hearing in the event of an emergency and appointment is necessary to prevent immediate injury to the ward or their estate.

The Process

To begin the formal guardianship process, an application is filed with the Probate Court by the proposed guardian asking for appointment. The Texas Probate Code specifies the information and documents that must be included in this application. An attorney ad litem must be appointed by the Court to represent the proposed ward’s interests. The cost of the attorney ad litem will typically be paid by the proposed guardian. A hearing will be held to determine if the guardianship is in the best interest of the proposed ward and if appointed, the guardian will need to qualified as a guardian. This requires the guardian to take an oath in Court and post a bond (usually a small cash bond of around $100 assuming the ward’s estate is not large).

A report on the condition of the ward and an accounting of the ward’s estate must be filed each year of the guardianship. Additionally, most Courts have a monitoring system in place in which a visit is made each year to the ward to keep the Court informed on the ward’s well being.

Important Note

Please keep in mind that a guardianship, especially those involving elderly, mentally incompetent or disabled persons, takes away rights of the proposed ward and Courts expect those seeking a guardianship to have considered less restrictive alternatives.

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