A guardianship is a legal arrangement in which one person, the guardian, is appointed by a court to make decisions on behalf of another person, the ward, who is deemed to be incapacitated or otherwise unable to care for themselves. Guardianship is typically established to protect the ward’s well-being and interests and ensure that they receive proper care and support. Guardianship is usually for a minor child or an adult who cannot make decisions due to a disability, injury, illness, or other circumstance. The guardian is responsible for making decisions about the ward’s medical care, financial affairs, and other consequential matters.
The Texas Estates Code, which outlines the guardianship establishment process, guardian responsibilities, and ward rights, governs guardianship in Texas. Before guardianship can be established for a person (adult or minor), the court must declare the person physically or mentally incapacitated. This process involves a detailed legal process and requires appointing a qualified and responsible guardian. Because of the rigorous nature of the process, it is best to get an attorney well-versed in the law to help your case go much smoother. The Law Office of Bryan Fagan boasts of several world-class professionals willing and able to make the process much easier for you.
Establishing a Guardianship in Texas
Here is the process for establishing guardianship in Texas according to the Texas Estates Code:
Filing the Petition
The first step in establishing guardianship in Texas is to file a petition with the court in the county where the proposed ward resides. The petition must include detailed information about the proposed ward’s incapacity or need for guardianship and information regarding the proposed guardian’s qualifications and willingness to serve. The petition must contain a medical report or affidavit from a licensed physician or psychologist stating the proposed ward’s incapacity and the nature and extent of the disability. The petition must also include a statement of the proposed ward’s assets and liabilities and any income or benefits they receive.
Appointment of an Attorney Ad Litem
After the petition, the court will appoint an attorney ad litem to represent the proposed ward’s interests in the guardianship proceeding. The attorney ad litem will meet with the proposed ward, investigate their circumstances, and review the petition and other documents filed with the court. The attorney ad litem will file a report with the court detailing their findings and recommendations, including whether guardianship is necessary and who should serve as guardian(s). This report will impact the court’s decision when making a final determination on guardianship.
Appointment of a Guardian Ad Litem
In addition to the attorney ad litem, the court may appoint a guardian ad litem to investigate the proposed ward’s circumstances and make recommendations to the court. The guardian ad litem may interview the proposed ward, family members, caregivers, and other individuals with information relevant to the guardianship.
Hearing on the Petition
Once the reports from the attorney ad litem and guardian ad litem have been filed, the court will schedule a hearing on the petition for guardianship. The proposed ward, their family members, and other interested parties may attend the hearing and present evidence to the court. The court will consider all evidence presented and decide whether guardianship is necessary and who should serve as guardians. If the court approves the petition for guardianship, it will issue an order appointing the guardian and specifying their duties and responsibilities.
The process can be complex and time-consuming, but it is a tool for protecting vulnerable individuals who cannot care for themselves. Working with an experienced attorney who can guide you through the process and ensure that your loved one’s interests are protected is necessary.
Duties and Powers of Guardians in Texas
The duties of a guardian in Texas are outlined in the Texas Estates Code and include the following:
Providing for the Ward’s Basic Needs: A guardian is responsible for providing the ward with food, clothing, shelter, and medical care. This duty also includes ensuring the ward has appropriate educational and vocational opportunities.
Managing the Ward’s Financial Affairs: A guardian manages the ward’s financial affairs and assets. This duty includes managing the ward’s income and expenses, paying bills, and making investments on the ward’s behalf. A guardian must keep accurate records of all financial transactions and regularly report to the court on the ward’s financial status.
Making Decisions About the Ward’s Medical Treatment: A guardian is responsible for making decisions about the ward’s medical treatment, including consenting to medical procedures and treatments. This duty also includes making decisions about the ward’s mental health treatment.
Making Decisions About Ward’s Care: A guardian is responsible for making decisions about the ward’s care, including choosing appropriate living arrangements and ensuring that the ward receives necessary services and support.
Reporting to the Court: A guardian has to regularly to the court on the ward’s condition and the guardian’s actions. This duty includes providing detailed information about the ward’s medical and financial status and any changes to the ward’s living arrangements.
Powers of Guardians in Texas
A guardian in Texas has certain powers necessary to carry out their duties. These powers include the following:
Consent to Medical Treatment: A guardian has the power to consent to medical treatment on behalf of the ward. This power covers making decisions about surgery, medication, and other medical procedures.
Manage Financial Affairs: A guardian can manage the ward’s financial affairs and assets. This includes paying bills, investing, and managing the ward’s income.
Manage Property: A guardian can manage the ward’s property and assets. This includes buying, selling, or leasing property on the ward’s behalf.
Manage Educational and Vocational Opportunities: A guardian can decide about the ward’s education and vocational training. This includes choosing appropriate schools or training programs and ensuring the ward receives the necessary support and accommodations.
Make Decisions About Living Arrangements: A guardian can decide about the ward’s living arrangements. This includes choosing appropriate housing and ensuring that the ward’s living environment is safe and suitable for their needs.
Limitations on Guardians in Texas
While a guardian has significant responsibilities and powers, their actions also have important limitations. These limitations ensure that the guardian acts in the ward’s best interest and does not abuse their position of authority. Here are a few:
Acting in the Best Interests of the Ward
The primary limitation on a guardian in Texas is that they must always act in the ward’s best interests. This means that the guardian must make decisions promoting the ward’s well-being, health, and safety. The guardian must also respect the ward’s wishes and preferences to the extent possible, even if they are not what the guardian would choose for themselves.
Avoiding Conflicts of Interest
Another important limitation on a guardian in Texas is the prohibition against conflicts of interest. The guardian must avoid any situation where their interests conflict with the ward’s. For example, a guardian cannot use the ward’s assets or property for their gain or benefit. The guardian must also avoid any actions that could be perceived as self-dealing or taking advantage of the ward’s vulnerable position.
Obtaining Court Approval for Certain Actions
A guardian in Texas must obtain court approval for certain actions, such as selling the ward’s property or making major medical decisions. This requirement ensures that the guardian acts in the ward’s best interests and does not make decisions based on their personal preferences or biases.
Reporting to the Court
A guardian in Texas must provide regular reports to the court on the ward’s condition and the guardian’s actions. This requirement ensures that the court is aware of the ward’s situation and can provide oversight and guidance to the guardian as needed. The reports must include information on the ward’s medical condition, living arrangements, financial situation, and any significant events or changes in the ward’s life.
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Other Articles you may be interested in:
- Legal Requirements for Becoming A Guardian in Texas
- Guardianship of Persons with Developmental Disabilities in Texas
- How to become the guardian of a minor in Texas
- The Role of Guardian ad Litem and Amicus Attorneys for Children in Texas: A Comprehensive Guide
- Guardian Ad items in Family Law
- Guardianships and alternatives for adult, disabled children in Texas
- Obtaining a guardianship over a child with disabilities in Texas
The cost of filing for guardianship in Texas varies depending on several factors, including the county in which the guardianship is filed and the case. In general, several fees and costs are associated with filing for guardianship in Texas, including court fees, attorney fees, and other costs.
The process of obtaining guardianship in Texas can vary in terms of timing, as it depends on several factors, including the case, the availability of court resources, and the cooperation of all parties involved. In general, obtaining guardianship in Texas can take several months to complete.
In Texas, there are several types of guardianship, each designed to address specific situations and needs. Some include Emergency Guardianship, Temporary Guardianship, Guardianship of the Estate, etc.
Texas recognizes guardianships established in other states as long as they meet specific requirements. The guardianship order from the other state must meet the legal requirements for a guardianship in Texas, including the condition that the proposed ward is incapacitated and in need of a guardian.
In Texas, certain individuals are prohibited from serving as guardians. They include minors under 18, incapacitated people, people with criminal records, people with a history of abuse and neglect, etc.