Guardianship Attorneys in Houston and Surrounding Areas
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 must petition the probate court after obtaining a qualified physician’s letter.
Guardianship cases involve several different people and moving pieces.
The Applicant (or in rare cases, Co-Applicants), who seeks 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 and 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 have lived independently. The constable will arrive to serve personal service on the Proposed Ward that the guardianship case has been docketed. 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 in some counties 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 and to represent the Proposed Ward. Immediately after being appointed the attorney ad litem will file an Answer to make an appearance in the case and then will physically meet the Proposed Ward and ask him/her 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 proper 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 a short period 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 periodically. 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.
In Texas, a guardianship is a relationship established by a court of law between an incapacitated person who needs help, known as a ward, and a person or entity named to help the person in need, known as the guardian.
Only a Court Can Create a Guardianship
There are no online forms that an individual can use to create a guardianship without court approval. The Court attempts to strike a balance so that the needs of the ward are taken care of by the guardian, while attempting to maintain the ward’s independence as much as possible.
The Texas Estates Code defines an incapacitated person as one who, due to physical or mental condition is substantially unable to feed, clothe or shelter himself/herself, to care for his/her physical health, or to manage his/her financial affairs. Because the guardianship procedure effectively takes away the rights of an individual to make certain decisions, Courts take the process very seriously and do not grant guardianship without sufficient evidence to do so.
What is the Role of a Guardian?
The role of the guardian is to protect the ward and the ward’s estate to the limit determined by the court. It is important to remember that a guardian’s powers and responsibilities are limited by the court and that a guardian cannot take any action that the court has not expressly authorized when the guardian was appointed.
If the ward’s capacity is diminished further, the guardian can request a subsequent order from the court to allow the guardian to act in an expanded capacity. Because the guardian is appointed by the court, the guardian is required to report annually to the court concerning the ward’s health, welfare, and the ward’s estate. The guardian must maintain records of any actions or financial transactions that have been taken on behalf of the ward.
A common misconception concerning the role of a guardian is that the guardian is responsible for the bad acts of the ward. This is not the case. A guardian is not liable for the bad acts of a ward unless the guardian is otherwise individually liable. Additionally, a guardian is not required to use his or her personal finances to provide care for the ward.
How Can I File for Guardianship Over an Adult in Texas?
When filing an application for guardianship over an adult, the location to file is either (1) the county where the proposed ward is located; (2) the county where the proposed ward resides at the time of the application, or (3) the county where the principal estate is for the proposed ward. For guardianship of a minor, the proper location to file the application is in the county where the parents reside or in the county where the parent with whom the child lives most often with resides.
In smaller counties, the county court will typically handle a guardianship application. In larger counties such as Harris, Bexar, Travis, and Dallas, there will typically be a dedicated probate court that handles the guardianship application. Typically, the same court retains jurisdiction throughout the guardianship until it is closed. However, if a ward relocates, the guardianship can be transferred to the new county or state where the ward now resides.
Once an application for guardianship is filed, the court will appoint an attorney ad litem to represent the ward. The attorney ad litem represents the ward and has certain duties under the Texas Estates Code. These duties include meeting the ward and the proposed guardian prior to any hearing so as to provide legal options, requesting medical history and records from the applicant’s attorney, interviewing key doctors and other witnesses, ensuring that there was proper service on the ward, ensuring that all procedures are followed in the process, and to advocate for the best interest of the proposed ward.
What Happens During a Guardianship Hearing in Texas?
At the guardianship hearing, the proposed guardian will provide testimony concerning the proposed ward’s incapacity and the extent of the proposed ward’s needs for a guardianship. The proposed guardian will also provide the ward’s medical records, as well as a letter and report dated within 120 days of the hearing from a medical doctor supporting the need for a guardianship over the proposed ward. At the hearing, the guardian ad litem will summarize his or her investigation and advocate in the best interest of the proposed ward and the court may ask the attorney ad litem for a written report as to the ward’s best interests. At the end of the hearing, the court will either approve the guardianship and issue a detailed order appointing the guardianship or deny the guardianship application.
After the court grants the guardianship application, the newly appointed guardian will likely be required to file a bond and must take and file an oath to faithfully discharge their duties and act in the best interest of the ward. Once the court approves the oath and bond, the court clerk will issue Letters of Guardianship to the newly appointed guardian. The Letters of Guardianship are evidence of a guardianship appointment by the court and give notice of the guardian’s capacity to act for the ward. The letters expire one year and 120 days from the date of issuance, but may be renewed annually by the court.
Contact Our Experienced Guardianship Attorneys
You can see from the above that it is important that you hire a very well qualified and experienced lawyer such as those at Stepp & Sullivan, P.C. to represent you should you wish to become a loved one’s guardian.