What is a Guardianship?

A Guardianship is authority over the person or estate, in some situations it’s both. Guardianship usually is granted by a court to a person for the benefit of an incapacitated individual, known as a ward. This relationship is governed by the Guardianship provisions of the Texas Probate Code.

When is a person incapacitated?

There are two situations that you can think of. One example is a person incapacitated by being underage, under age 18, the second is when a person is incapacitated because he or she cannot care for themselves or their property due to some illness or other mental deficiency.

When is Guardianship required?

The moment a person becomes incapacitated as an adult or when a minor with Mental Incapacity or Intellectual Disability (such as Down Syndrome, Autism (ASD), Fragile X syndrome, and phenylketonuria (PKU) or another developmental deficit might require a guardian to care for their personal and financial needs) turns 18. This challenge often comes to light when such a person is in need of medical care, and while he is now an adult, he cannot communicate, nor can he give consent for a doctor to provide necessary care. It is essential for parents with children in this situation to plan for this eventuality with the help of a qualified guardianship attorney, such as Attorney Schoemakers.

Can a Guardianship procedure be avoided?

In the case of an incapacitated adult, most likely. Before an older member of the family who has been diagnosed with Alzheimer’s disease, dementia, or other infirmity that affects their memory or intellectual functioning, they might have

Guardianship might be necessary as well to protect them, because they no longer can enter into contracts, obtain housing, or healthcare without help.

Most adults, however, can avoid a guardianship procedure all together by careful advance planning. Not only can an adult anticipate and plan for incapacity by executing Guardianship paper, by executing a document named Choice of Guardian in Case of Need, and specifically naming a person they would like to be their Guardian, or specifically disqualifies a person before the need for a guardian arises.

An additional way to avoid Guardianship Procedures for an Adult is to have a Durable Powers of Attorney and advanced directives in place. However, even with every planning document in place, if the family members have conflict over the choices made by the now incapacitated family member, this conflict will find its way to a guardianship proceeding. But that written Choice of Guardian, made when you are in good health and feel great can be strong evidence of your preference to the court.

What is required to obtain a guardianship of an incapacitated adult?

In order to obtain a guardianship of the person or estate of an incapacitated adult, or both, the applicant must have standing to do so, and must present a “doctor’s letter” describing the nature and extent of the proposed ward’s incapacityTexas Probate Code section 687. Most courts require that the doctor’s letter be in a particular form. Here is an example. Texas Estates Code section 1101.103

Can anyone serve as Guardian for an Incapacitated Adult?

No, there are many reasons a person may be disqualified to serve as a guardian. For example, an applicant would be disqualified as guardian of a person or of a person’s estate when they owe the proposed ward money, has a felony conviction, or is too inexperienced to manage another person or their estate. Texas Estates Code sections 1104.351. Also, as discussed above, the proposed ward may have specifically disqualified a person through a written document (Choice of Guardian in Case of Need) signed before the need for a guardian arises.

Who can serve as a Guardian of a Minor Child?

A surviving parent according to Texas Estates Code Sections 1104.051, or one of the parents in the event the parents do not live together.  In that case, the court determines which parent should be named as guardian in the best interest of the minor child. If there are no surviving parents, then a person designated in a will of the parent may be named as guardian of the minor child or children. Texas Estates Code Sections 1104.053.  If the parents had no will, or named no guardian for their children, then a relative, the “nearest ascendant” is entitled to serve as guardian. Texas Estates Code Sections 1104.052.  Additionally, however, if the minor child is aged 12 years or older, the court may consider a selected person of the child, if the “person selected is suitable and competent; and the appointment of the person is in the minor’s best interest”, Texas Estates Code Sections 1104.054.

What happens after a Guardianship is created?

After a court creates a guardianship, the guardian is granted Letters of Guardianship of the Person, which is a document that is evidence of the guardian’s authority over the ward. The court then maintains oversight of the ward and their affairs. The guardian must report at least annually on the persona status of the ward and if applicable the ward’s estate, meaning the ward’s property and money. An Annual Report of the Person is required and is filed with the court in order to renew those very important Letters of Guardianship of the Person. It is important to understand that Letters of Guardianship of the Estate will only be renewed by the Court if the accounting balances to the penny.

As you can see, you should discuss the need for a guardianship with a qualified Houston Guardianship Attorney to make these important plans. If you have questions or concerns about guardianship or you would like to discuss your estate planning needs with a trusted Houston Special Needs And Guardianship Attorney in the Clear Lake, Texas, contact our office today, we hare here to help.

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