For parents of minor children or children with special needs, it is incredibly important to establish a legal guardian. This person will be responsible for caring for your child in the event that you pass away. Without a legal guardian, your child may be placed by the court with a person of its choosing, regardless of your wishes. By naming a legal guardian, you can ensure that your child will be properly cared for by someone you trust. Just as important as appointing the people you trust, in the same set of provisions, you can identify unsavory individuals from your past that you like to bar from serving as guardian.
The process of selecting and legally appointing a guardian can be more complex than most people realize. It is not enough to simply tell a person that you want them to care for your child if you die; you must complete the necessary steps to ensure that this person not only has the authority to look after the physical well-being of your child/loved one, but also the legal ability to manage his or her affairs.
To learn more about appointing a legal guardian for your child, contact Stepp & Sullivan, P.C. at (832) 501-2823 and schedule a consultation with our Houston guardianship attorneys.
Taking Care of Yourself in the Event of Later Incapacity
Just as important as nominating individuals you trust as guardians for your minor children, and naming people you do not trust so they are prevented from becoming guardian, an important part of your own comprehensive estate planning package is declaring who should become guardian of you in the event of your later incapacity; and who should not be eligible to serve as your guardian.
The process of selecting and legally appointing a guardian can be more complex than most people realize. It is not enough to simply tell a person that you want them to care for you if you become disabled or incapacitated and less restrictive measures have failed; you must complete the necessary steps to ensure that this person not only has the authority to look after the physical well-being of you, but also the legal ability to manage your affairs.
To learn more about appointing a legal guardian for you, contact Stepp & Sullivan, P.C. at (832) 501-2823 and schedule a consultation with our Houston guardianship attorneys.
Becoming a Guardian in Texas
If you wish to become a guardian for an individual who is unable to care for themselves, either due to physical or mental incapacity, you may petition the probate court after obtaining a qualified physician’s letter.
Guardianship cases have several different people and moving pieces.
The Applicant (or in extremely rare cases, Co-Applicants), who seek to be named Guardian of the Person and/or Guardian of the Estate of the Proposed Ward must pass a background check and other eligibility requirements under Texas law; and new legislation now requires the Applicant to complete training outside of court before the hearing on the merits.
The Proposed Ward, the allegedly incapacitated person, will receive several visitors over a short period of time, wherever they live – which could be in the Applicant’s home, an assisted living facility, or perhaps even their own home if they had lived independently. The constable will arrive to serve personal service on the Proposed Ward that the guardianship case has been docketed against them. The attorney ad litem, once appointed by Order of the Court, will arrange to visit in-person wherever the Proposed Ward lives. The probate court’s investigator will also make an appearance somewhere in the process. In an uncontested case that would be all; but in a contested case then a Guardian Ad Litem will visit next.
The attorney ad litem is an independent lawyer appointed by Order of the Court to investigate the claims made in the Application. Immediately after being appointed the attorney ad litem will file an Answer to make an appearance in the case and then will physically go meet the Proposed Ward and ask them questions and gauge their responses. In cases where the Proposed Ward seems to be capable of handling their own affairs; or when the Proposed Ward vigorously objects to the Applicant (for some reason) becoming their Guardian but is otherwise fine with a guardianship; or when the attorney ad litem has other concerns about the guardianship, the attorney ad litem will report back to the Court seeking a guardian ad litem to be appointed. The main difference between the attorney ad litem and the guardian ad litem is that the attorney ad litem is the voice for whatever the Proposed Ward wants – while the guardian ad litem pursues what is in the best interest of the Proposed Ward.
The process for becoming a guardian in Texas in an uncontested case typically goes as follows:
- The proposed ward will be evaluated by a qualified physician in order to verify that they are incapacitated and the physician’s certificate will then be public record once filed along with the Application.
- The proposed guardian’s attorney will file an application for guardianship with the court and the proposed ward must be personally served with the application.
- The Court will appoint an independent attorney ad litem.
- The proposed guardian must pass a background check and not otherwise be disqualified by law.
- Potential interested parties (such as siblings and other relatives of the proposed ward) must be notified of the docketed application.
- The proposed guardian must complete training before a hearing.
- Both the proposed guardian and the proposed ward (if medically possible) will need to appear in court, along with their respective attorneys.
- During the hearing the record must detail why the proposed ward needs a guardian, why you are fit to serve as the guardian, and that less restrictive measures have failed to protect the Proposed Ward.
If following the hearing, you are appointed the guardian of the proposed ward, you will need to legally agree to carry out the duties required of you as a guardian. These duties may include everything from providing a physical home for the ward to ensuring that they receive proper medical care to handling the ward’s personal finances. You will have 20 days following the hearing to agree; then you will need to post bond in order to receive the Letters of Guardianship, valid for up to 16 months. The letters must be renewed every 16 months. You must keep the Court updated on change of address or any other essential information. Also, you must file regular accounting's and reports. Failure to comply with the requirements can have not just civil complications as you are removed as guardian, but could also have criminal complications for you.