If you are named as the guardian of a person in your life that means you have a wide range of responsibilities for him or her extending beyond day-to-day care. One of those large responsibilities that you have is to be able to make an annual report to the county whose name you as guardian of that person. This annual report will detail the past year and the major happenings in the life of the ward. In today’s blog post from the Law Office of Bryan Fagan, we are going to provide you with an overview of what guardianship is and what the component pieces of a guardianship can mean for your family moving forward.
To begin with, a guardianship in Texas covers the care and maintenance of an incapacitated person. Because different people can have different definitions of incapacitated, we wanted to provide you with a basic explanation of what incapacitated means to the state of Texas. First, anyone who has ever been through a family law case would be familiar with the first class of incapacitated persons. A minor child under the age of 18 is technically an incapacitated person for whom a parent or guardian must provide food, clothing, shelter, and other essentials. We sometimes you know think about children as being incapacitated but under the definition of the law, children count in this way.
However, we are going to be discussing adult incapacitated persons here in today’s blog post. Due to a mental or physical condition if an adult is unable to provide food, clothing, or shelter for himself or herself or generally care for their own physical or financial affairs he or she can be declared incapacitated by a Texas State court. Additionally, if an individual in your life is found to be disabled by the Social Security Administration, then a person may be appointed to receive benefits on their behalf if the administration determines that your loved one is incapable of receiving those benefits him or herself.
Who is a guardian?
Now that we know who an incapacitated person can be we can also speak to who can act as a guardian in what a guardian does on behalf of a ward. A guardian can be someone in a more permanent caretaking role but can also be named as a temporary guardian. There are two basic roles that a guardian can fulfill on behalf of a person. The first role is that of a guardian of the estate of an incapacitated person. When you think of someone’s estate this does not necessarily mean a person’s physical residence or real estate. Rather, an estate is a term to reflect a person’s financial estate meaning their assets as well as debts. If you are named as the guardian of a person’s estate, then you are the caretaker for that person’s finances.
Next, you may also be named as the guardian of a person. When you are named as guardian of the person then that incapacitated person is in your daily care. Think about all the different facets of a person’s life in terms of helping him or her get to the doctor, feeding him or her, bathing him or her and generally making decisions on that person’s behalf in multiple areas not just limited to the person’s finances. This is a massive responsibility if you are named as the guardian of an adult’s person.
A guardian can be any person like a family member of the incapacitated person, a friend, a nonprofit organization that acts as guardians, a private individual who was appointed by a court to act as guardian as well as a governmental entity like a county. Depending upon the circumstances of the incapacitated person any of these people or entities may be appointed to act as guarding in their case. In truth, much of it depends upon the people available to act as guardians in the life of the incapacitated person. If a person becomes incapacitated but does not have a suitable guardian in their family, then other options may have to be pursued by a court.
What are the sorts of rights that a ward has removed under a guardianship?
A ward would typically no longer be able to vote in elections or on any other matter. A ward would also not be able to own a firearm or operate a motor vehicle. Getting married and making a will are also things that a ward cannot agree to or engage in as a result of other incapacity. Even making personal decisions regarding where he or she lives when trying to find work is not possible for award. This is one of the reasons why courts will look to perform actions short of naming a guardian if possible.
How can you apply to become someone’s guardian?
In the county where the potential ward is residing, you would first need to apply with the probate court. Once that application is filed you would need to include a doctor’s examination form detailing the proposed Ward’s condition for the court to review. At that point, the court would appoint an attorney ad litem to the case. An attorney ad litem represents the interests of the potential ward. He or she would perform their investigation to collect additional information to make available to the court. Once all the available evidence has been accumulated a hearing will be held and a judge could decide whether to name you guardian of this individual.
However, sometimes a court can initiate guardianship proceedings. The process is similar but not the same. When a court initiates guardianship proceedings, an information letter or a referral from a doctor can be sent directly to a court. In that case, a judge could again appoint an attorney at litem or assign an investigator to the case to investigate the matter directly. As we just covered, an application can be filed to appoint you or any other interested person as guardian. Any state or local agencies or programs that help the public with guardianship issues may also apply for guardianship. Once this application is filed the process, we covered in the previous paragraph will be followed exactly.
What are the responsibilities of a court in a guardianship proceeding?
Once a guardianship case makes its way to court a judge would first be charged with deciding on whether or not the proposed ward is incapacitated. This decision would need to be made with the available evidence. This available evidence could be doctor’s reports, family member statements, police or law enforcement reports, mental health institution reports, and the experience and opinions of the judge or herself. Typically, the more information that can be provided to the court the better off all parties will be.
Next, if you apply to be named as the guardian of the proposed ward then the court will determine whether you are qualified to serve in that capacity. A background check will be run on you and your ability to act in this way on behalf of another person will be determined. If there are any concerns with you being named as guardian those concerns will be addressed in a hearing and the court will decide on whether you will be able to serve as guardian.
If not, then the court will look elsewhere to name a person as guardian of the proposed ward. As we mentioned earlier in today’s blog post, the court will also need to figure out if there are any options available to care for the proposed ward that falls short of naming a guardian. This is a rather extreme situation and not one that a court will enter if there are any other options available. A best-interest determination will be made based on the ward in their situation.
They are not able to serve as a guardian foreign incapacitated person. It should go without saying that a minor or any other incapacitated person would not be able to act as a guardian. In some cases, a well-meaning individual who applies to become the guardian of another person may be disqualified by a court because he or she simply has no experience or education in the ways of caring for another person. Remember that a guardian is caring for a person’s finances, their day-to-day health, or possibly both. This is a big responsibility and even if you are well-meaning or well-intentioned that is no substitute for an ability to take care of another person well.
What happens after you are appointed as the guardian of a person or their estate?
Now that you have been appointed as an individual’s guardian, we need to spend some time talking about what the next steps in the process are. The guardian must first take an oath or declare that he or she will fulfill the obligations of a guardianship in Texas and commit themselves to minding the best interests of their ward. A bond would be paid to the court that ensures compliance with the annual reporting requirements, among others under Texas guardianship law.
Another responsibility that is sometimes overlooked by people in your position is that of obtaining letters of guardianship. Letters of guardianship allow for an individual such as yourself to execute their duties as guardian. This means that to act on your ward’s behalf with doctors, financial institutions, and anyone else those third parties will need to be able to understand that you have the authority to act on your ward’s behalf. In that case, these letters of guardianship are extremely important. An important step in this process is to be able to provide your ward with a copy of the letters of guardianship, a bill of rights, and contact information for you and other important state resources. Once all of this is done you will want to investigate any entity or person who provides services for your ward and provide him or her with these letters of guardianship. This will ensure that there is no disruption in services provided to your ward regardless of anything else ongoing in their life.
The responsibilities of a guardian
Ultimately, when you work to be appointed as a person’s guardian you are doing so because that person needs your help. He or she is no longer capable of making decisions for themselves or in their own best interests. As a result, you will need to be able to make decisions for this person daily. You should review the guardianship documents from the court and familiarize yourself with the different responsibilities that a guardian has under Texas law. Remember, there are permanent and temporary guardianships as well as guardianships of the person and a person’s estate. You should always be familiar with what your role is in the life of your ward so that you do not overstep your bounds or do something that is not commensurate with the guardianship orders from the court.
Making decisions for your ward is likely the most important part of your day-to-day activities on behalf of the ward. In some cases, your ward may be incapacitated to the point where he or she is unable to engage in any decision-making on their behalf. However, while you are ultimately the person tasked with making decisions on behalf of the ward he or she can participate as much as possible in the process of making those decisions. The basic areas of your ward’s life that are important to take note of are their medical decisions, where he or she lives, as well as financial decisions like buying and selling property.
A less talked about, yet still important area of your ward’s life that needs to be decided upon is that of allowing family members and visitors to see the person. Many of us are familiar with the concept of elder abuse. Elder abuse is when an elderly person is taken advantage of physically or financially by another person. To a large extent, a guardian is made responsible for ensuring that no elder abuse occurs. You should be cognizant of the people in the life of your ward so that he or she and their assets remain safe.
Each year you as the guardian are responsible for making an annual report to the court of the major events in the life of your ward. This does not mean that you have to make a report every time your ward goes to the bathroom or every time you trim his or her fingernails, but you do need to keep the court updated with the major events of that person’s life over the past year. This may mean major physical changes or decisions that are made regarding the property or the state of your ward. The court wants to ensure that you are continuing to manage the person’s affairs to the best of your ability and with their best interests in mind.
You will also have a responsibility to keep in contact and communicate with the family and friends of your guardian and to make yourself available to the providers of the services that your ward takes part in. When it comes to family members of your ward you have the responsibility to keep them informed of the changes in your ward’s medical condition or in the place where he or she lives. If the providers of services to your ward have questions for you then you need to make yourself available to them consistently to interface about your ward’s condition. These providers may need to give updates on the health of your ward so that you can make good decisions on that person’s behalf.
A guardian is not able to force treatment or medicate the ward against the recommendations of a doctor or other person. In some cases, guardianship may not be what is in the best interest of a person. Things like community services, powers of attorney, advanced directives, or even a special needs trust are steps that fall short of having a guardian appointed yeah can often serve similar purposes just as well. A court may prefer these alternatives before going to the last available remedy of appointing a guardian.
If you are in a situation where you have a family member where you believe he or she needs to have a guardian appointed, then doing your best to mind the best interests of your family member is what that person needs. Contact an experienced guardianship attorney with the Law Office of Bryan Fagan to determine whether guardianship is right for your family.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, then please do not hesitate to contact the Law Office of Bryan Fagan. Our experienced guardianship attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas guardianship law as well as other estate planning and probate-related matters.