DOES YOUR LOVED ONE NEED A GUARDIAN?
FREQUENTLY ASKED QUESTIONS
LAST REVISED MAY 24, 2013
The information provided herein is for general informational purposes only, and is not intended as specific legal advice to any particular individual or circumstance. Each person and circumstance is unique, and the information provided may not apply, in whole or in part, to a particular fact scenario or particular individual or family. The information provided is based upon Texas law, only, and should not be presumed to apply to any situation in which the laws of another state are applicable.
What is guardianship?
Guardianship is a court ordered caretaker relationship whereby an partially or fully incapacitated adult (18 years of age or older) (called a “proposed ward" before trial and a “ward" if the court orders a guardianship) has some or all of his/her legal rights removed and given to a guardian who has the legal duty and obligation to exercise those rights for the best interest and welfare of the ward.
What does it mean to be incapacitated?
“Incapacitated" is a legal term and it is not the same as being incompetent. A person can be incapacitated either because of a legal disability (such as being a minor child) or because that individual, although an adult, is substantially unable to care for his or her daily life needs. A person can be partially or fully incapacitated. For example, a person may be able to provide for her daily physical needs and live independently or with some level of assistance short of guardianship, but may be unable to manage her financial affairs (or vice versa). Only a probate court, or a court exercising probate jurisdiction, can make a determination of incapacity.
What types of individuals are likely to need a court appointed guardian?
Those who need a guardian commonly fall into two categories: 1) disabled children who are turning or have turned eighteen years old or older; 2) elderly individuals. Occasionally, an individual who has suffered an debilitating illness or injury may become incapacitated and need a guardian.
Aren't family members automatically the guardians of their incapacitated adult relatives without having to go to court?
No. The parent, spouse or child of an incapacitated adult person is not automatically the guardian upon incapacity. A guardian must be appointed by the court and only after following the specific requirements of the Probate Code. This protects the proposed ward. A guardianship is a very serious matter, and takes away fundamental rights and privileges of the proposed ward. That deprivation of rights should be not undertaken lightly.
Can I adequately protect my adult incapacitated loved one without a formal guardianship?
If your loved one is incapacitated, it is in your loved one's best interest to have a guardian appointed. Failure to obtain guardianship places your loved one at risk for not getting necessary assistance and exposes you and your service providers to potential liability.
How is a guardianship case started?
A guardianship case is initiated by filing an application with the statutory probate court (if there is one) in which the proposed ward resides or the county court in some other counties.
Who is entitled to notice of the guardianship case?
The Probate Code requires service of the application for guardianship by: 1) posting; 2) upon the proposed ward; 3) upon the proposed guardian if the guardian is not the applicant; 4) the parents of the proposed ward, if possible; 5) the proposed ward's spouse, if possible; and 6) any conservator of the proposed ward or person actually having control of or caring for the proposed ward. Additional parties are required to be served by certified mail.
Who can start a guardianship case?
A guardianship case can be initiated by any person, even a total stranger.
Can I represent myself in a guardianship case?
No. You have a right to represent yourself in court, but unless you are a licensed attorney, you cannot represent another person. A guardianship case is considered as filed on behalf of another person.
What kind of evidence is required to prove incapacity?
An application must be supported by a detailed medical evidence letter. This letter must be completed and signed by a medical doctor, and dated within 120 days of the filing of the application (before or after). The incapacity must be evidenced by recurring acts or occurrences within the six months prior to the appointment and not isolated instances of neglect or bad judgment.
Can anyone be appointed to act as a guardian for an incapacitated person?
No. A person may not be appointed if the person is: 1) a minor; 2) notoriously bad; 3) an incapacitated person; 4) a party to lawsuit involving the proposed ward (unless the court finds that the lawsuit is not a conflict); 5) indebted to the proposed ward (unless the person pays the debt before appointment); 6) asserting a claim adverse to the proposed ward; 7) lacking the experience, education or other good reason to properly and prudently manage and control the ward or the ward's estate; 8) found unsuitable by the court; 9) disqualified because the proposed ward filed a declaration of guardian disqualifying the person; 10) is a non-resident who has not filed with the court the name of a resident agent; or 11) not certified and certification is required.
Are there any alternatives to guardianship that are less intrusive?
Yes. The appointment of a guardian must be the least restrictive alternative to protect the proposed ward. Use a power of attorney, medical power of attorney, trusts, etc. if possible, if those lesser restrictive avenues will protect the proposed ward.
Does the proposed ward have any rights during the guardianship process?
Yes. Having one's rights removed and granted to someone else is a very serious matter, and should not be done unless necessary. The proposed ward: 1) has the right to contest the appointment of a guardian; 2) has the right to a jury trial; 3) is entitled to an attorney ad litem; and 4) may have appointed a guardian ad litem to advocate for the proposed ward's best interest.
Who pays for the attorney and guardian ad litem fees and expenses?
If the proposed ward owns sufficient assets, the guardianship estate pays. If the proposed ward has no estate, the county in which the case is pending pays.
Does anyone have priority to be appointed as guardian?
Yes. The spouse of a proposed ward, and then the parents and/or children, have a statutory priority to consideration as the guardian.
Can the court appoint more than one person to act as guardian?
There can be no co-guardians except for parents of a proposed ward, who can be appointed co-guardians even if they are no longer married to each other, assuming that such joint appointment is in the best interest of the proposed ward.
Does the proposed ward have any “say so" in who is appointed as guardian?
Yes, The court is required to consider (but is not bound to accept) the proposed ward's preference for who should be guardian.
What terms must be included in a guardianship order?
The order must specify: 1) what rights are being removed from the ward; 2) what rights are being granted to the guardian; 3) the bond required; and 4) whether an appraisal is required.
Does the guardian have to post a bond?
Yes. The amount of bond generally required for guardian of the person is fairly minimal. The amount of the bond for guardian of the estate is based on the value of the estate and the type of assets.
How long does a guardianship last?
The guardianship remains in place until the ward dies, or has his/her rights restored (unless the guardianship was for a minor or to receive government funds).
What happens if the guardian dies before the ward?
A successor guardian is appointed.
Can a guardian execute a Do Not Resuscitate (DNR) order?
No, and any previous DNR likely is not valid. If a DNR should be executed, you must go to court for an order upon competent medical opinion that your loved one has six months or less to live.
Can a guardian commit his loved one to a mental health facility involuntarily?
No. You must go to mental health court if the commitment is involuntary.
Does a guardian automatically gain control over the ward's Social Security benefits?
No. Representative payee status under Social Security is a separate issue from guardianship.
Who should be provided a copy of the guardianship order?
It is always a good idea to provide a copy of the actual order of appointment to the residential facility, the hospital, the doctors or whoever else might need one in addition to letters of guardianship. Providing a copy of the order of appointment helps avoid potential arguments over what specific rights the guardian actually has over the ward.
Can an individual pre-plan for a guardianship before the need arises?
Yes. A person can execute a designation of guardian before the need arises. Such a designation can avoid a family feud down the road.
Is a guardianship case expensive?
Generally no, if it is not contested. If the application is contested, it can get very expensive.
Does the court have to appoint a guardian of the estate in addition to guardian of the person?
If your loved one has no assets, then only a guardian of the person is necessary.