A guardianship is a legal relationship in which a court appoints a guardian to make decisions for and act on behalf of an individual who cannot make decisions for themselves due to a physical or mental incapacity. The individual who cannot make their own decisions is referred to as the ward or the protected person, and the guardian is responsible for making decisions related to the 0ward's personal care, medical treatment, education, and finances.
In most cases, guardianship in Texas is typically used when an individual has a developmental disability, mental illness, or is incapacitated due to an injury or sickness. In Texas, guardianship of persons with developmental disabilities is governed by Chapter 1104 of the Texas Estates Code. Because of the sensitivity surrounding most cases involving persons with developmental disabilities, having a capable attorney to make the process smoother is necessary. The Law Office of Bryan Fagan has several great minds well-equipped in this field that will prioritize your interests and the case's success.
Who Is A Person with Developmental Disabilities in Texas?
In Texas, a person with developmental disabilities is defined as an individual who has a severe, chronic disability that:
is attributable to a mental or physical impairment or a combination of mental and physical impairments
is manifested before the individual attains the age of 22
is likely to continue indefinitely
results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency; and
reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated.
Developmental disabilities can include conditions such as intellectual disability, autism, cerebral palsy, Down syndrome, and other similar disorders that affect a person's ability to function independently. The Texas Health and Human Services Commission emphasizes the definition of developmental disabilities in Texas and determines eligibility for various services and supports the state provides.
Who Is Eligible For Guardianship in Texas?
In Texas, the eligibility for guardianship is governed by Chapter 1104 of the Texas Estates Code, which provides that individuals who cannot make decisions about their welfare are eligible for guardianship. Eligible individuals include those with:
Developmental Disabilities
Individuals with developmental disabilities are eligible for guardianship if they are over 18 and cannot make decisions about their welfare. Developmental disabilities include conditions such as autism, intellectual disability, cerebral palsy, and other similar ailments that affect a person’s ability to function independently.
Mental Illness
Individuals with mental illness may be eligible for guardianship if they cannot make decisions about their welfare. Mental illness includes conditions such as schizophrenia, bipolar disorder, major depression, and other conditions that affect a person’s ability to function independently.
Traumatic Brain Injury
Individuals with traumatic brain injury may be eligible for guardianship if they cannot make decisions about their welfare. Traumatic brain injury can result from a blow to the head or other types of injury that cause damage to the brain.
Dementia
Dementia is a progressive disease that affects a person’s memory, thinking, and behavior. As such, Individuals with dementia may be eligible for guardianship if they cannot make decisions about their welfare.
How to Petition for Guardianship in Texas
If you are seeking to become a guardian for a loved one or someone in your care, there are several steps you must take to petition for guardianship in Texas. They include:
Step 1: Determine if guardianship is necessary
Before you begin the guardianship process, you must determine if guardianship is necessary. Guardianship is a serious legal arrangement that should not be entered into lightly. It is important to consider whether less restrictive alternatives, such as power of attorney or advance directives, are appropriate for the situation.
Step 2: Hire an attorney
The guardianship process in Texas can be complex, and it is highly recommended that you hire an attorney to guide you through the process. An attorney can help you understand your legal rights and responsibilities as a guardian and can represent you in court if necessary.
Step 3: File a petition with the court
To petition for guardianship in Texas, you must file a petition with the probate court in the county where the ward resides. The petition must include:
A statement explaining why guardianship is necessary
The name, age, and address of the ward
The name, age, and address of the proposed guardian
A statement from a physician or mental health professional certifying that the ward is incapacitated and unable to make decisions about their welfare
A list of the ward’s property and assets
Step 4: Serve notice to interested parties
Once the petition has been filed, you must serve notice of the guardianship proceedings to interested parties, including the ward, known heirs, and any person who has provided care or services to the ward within 60 days. The court will provide you with instructions on how to properly serve notice.
Step 5: Attend a hearing
The court will hold a hearing to determine whether guardianship is necessary and, if so, what type of guardianship is appropriate. You must attend the hearing, and the ward will also have the opportunity to attend and be represented by an attorney ad litem. The court may appoint a guardian ad litem to investigate and report to the court on the ward's best interests.
Step 6: Comply with court requirements
If the court approves the guardianship, you must comply with certain court requirements. These may include:
Submitting annual reports to the court on the ward’s condition, finances, and any other matters related to the guardianship
Seeking court approval for certain actions, such as selling the ward’s property or making major medical decisions
Providing notice to the court if the ward’s condition or situation changes
While it is not required by law to have a special needs lawyer when handling guardianship of persons with developmental disabilities in Texas, it is highly recommended. A special needs lawyer can provide valuable guidance and support throughout guardianship, which can be complex and challenging. A special needs lawyer can assist with the following:
Legal expertise: Special needs lawyers have specific knowledge and experience in guardianship law and can guide the legal process, including petitioning the court, obtaining necessary medical assessments, and completing required paperwork.
Understanding of the needs of individuals with developmental disabilities: A special needs lawyer can provide insight into the unique needs and challenges of individuals with developmental disabilities and help ensure that the guardianship arrangement is tailored to meet the specific needs of the ward.
Advocacy: A special needs lawyer can serve as an advocate for the ward and their family, ensuring that their rights are protected, and their needs are met.
Future planning: A special needs lawyer can assist with future planning, including setting up a special needs trust or creating a comprehensive estate plan to ensure the ward is cared for even after the guardian passes away.
Types of Guardianship
Although the most common types of guardianships in Texas are full and limited guardianships, there are several more types.
Types of Guardianships | Meaning |
Full Guardianship | Grants the guardian complete authority to make all decisions on behalf of the ward, including medical, financial, and personal decisions. |
Limited Guardianship | Grants the guardian authority to make only certain decisions on behalf of the ward, such as medical decisions, while the ward retains decision-making authority over other areas of their life. |
Emergency Guardianship | Allows the court to appoint a temporary guardian for a person who is in immediate danger or at risk of harm. This type of guardianship is typically granted for a limited time, such as 60 days. |
Standby Guardianship | Allows a person to designate a standby guardian to take over as the primary guardian if the primary guardian becomes incapacitated or dies. |
Co-Guardianship | Allows two or more people to share guardianship responsibilities for a ward. This type of guardianship may be granted if the court determines that it is in the ward's best interests. |
Guardian of the Estate | Grants the guardian authority to manage the ward's financial affairs, including paying bills, managing investments, and making financial decisions on behalf of the ward. |
Guardian of the Person | Grants the guardian authority to make decisions about the ward's care and well-being, including medical decisions, living arrangements, and educational decisions. |
It's essential to remember that while these types of guardianship have specific meanings in Texas, the specifics of guardianship can vary depending on the circumstances and the court's determination of what is in the ward's best interests.
Other Related Articles
- How to File for Guardianship in Texas: A Step-by-Step Guide
- Guardianships and alternatives for adult, disabled children in Texas
- Obtaining a guardianship over a child with disabilities in Texas
Guardianship FAQs
- How do I get guardianship of a disabled person in Texas?
- It is important to note that the process for getting guardianship of a disabled person in Texas can be complicated, and it is recommended that you seek the advice of an attorney familiar with guardianship law in Texas.
- What is a disqualification for guardianship in Texas?
- It is important to note that the court has discretion in appointing a guardian and may consider additional factors in determining whether an individual is qualified to serve as a guardian. If it is decided that the ward is capable of making decisions regarding their care, the court in Texas may also decide to end the guardianship.
- How long does the guardianship process take in Texas?
- The length of the guardianship process in Texas can vary depending on several factors, such as the complexity of the case, the availability of the court and its docket, and whether any objections are raised. Generally speaking, the process can take several months to a year or more.
- What is an alternative to guardianship in Texas?
- An alternative to guardianship in Texas is “supported decision-making.” Supported decision-making is a process in which a person with a disability works with a network of supporters, such as family members, friends, or professionals, to help them make decisions and navigate life choices.
- Does Texas recognize guardianship from other states?
- Yes, Texas generally recognizes guardianship orders from other states under the Full Faith and Credit Clause of the U.S. Constitution. This means that a guardianship order issued in another state will be recognized and enforced in Texas if issued by a court with jurisdiction and is valid and enforceable under the laws of that state.
