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. It 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 is responsible for managing 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 report regularly 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 the 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 has the power to manage the ward’s financial affairs and assets. This one includes paying bills, making investments, and managing the ward’s income.
- Manage Property: A guardian has the power to 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 has power to make decisions 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 has the power to make decisions 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, there are also important limitations on their actions. 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 interest. 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.
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 those of the ward. For example, a guardian cannot use the ward’s assets or property for their gain or benefit. The guardian must also avoid any actions 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. Some of these include 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 biased decisions.
Reporting to the Court
A guardian in Texas must provide regular reports to the court on the ward’s condition and actions. This requirement ensures that the court is aware of the ward’s situation. The reports must include information on the ward’s medical condition, living arrangements, financial situation, etc. This also includes any significant events or changes in the ward’s life.
