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Guardianships in Texas
When the time comes that one is no longer able to manage their financial or personal affairs, a guardianship may be needed. This is also true if someone needs the authority to act for a minor or to manage the minor’s property.
Put simply, the term “guardianship” refers to the court supervision of an incapacitated person. A court appointed guardian is given legal authority to make personal and/or financial decisions for the incapacitated person.
The appointment of a guardian is not to be taken lightly. As a result of guardianship, the “ward” is losing their own legal authority. This process can be costly and intrusive. In these cases, the courts go to great lengths to make sure that a guardianship is actually needed and that the proposed guardian is qualified.
When is a Guardianship Needed?
A guardian may be appointed if a person is suffering from mental capacity issues.
Less permanent challenges usually will not qualify for guardianship. These instances include those who have acute drug additions, those with destructive financial habits, or alcoholics.
It is not appropriate to seek guardianship if there is a less intrusive alternative. These alternatives include the following:
- execution of a declaration for mental health treatment
- execution of a medical power of attorney
- appointment of a representative payee to manage public benefits
- appointment of an agent under a durable power of attorney
- creation of a Chapter 1301 management trust
- creation of a special needs trust
- designation of a guardian before a need arises
- establishment of a joint bank account
- establishment of alternate forms of decision making based on person-centered planning
The courts will demand convincing and clear evidence that these alternatives are not feasible before they will consider appointing a guardian.
Who Can Serve as Guardian?
Generally, the courts will give preference to the following persons when deciding who can be appointed as guardian:
- the spouse of the incapacitated person
- an eligible person who is best qualified to serve
- the nearest of kin, considering the minor’s best interests
If the ward is a minor and is at least 12, the minor may select a guardian in writing. This is subject to the court’s finding that it is in the best interest of the minor.
The Guardianship Process
The process begins with the filing of an application and an assessment by third parties followed by a court hearing. Typically, courts require an application be filed by a guardianship attorney.
The courts can also initiate a guardianship if they are given information that the appointment of a guardian is needed for a person located in a specific county.
Guardianship can be temporary or permanent, and the court can appoint the guardian powers to act for the ward’s property, the ward’s person, or both.
Once appointed, the guardian is subject to court supervision. This supervision requires annual reporting, annual visits by a court visitor, and an annual review to determine whether the guardianship should be continued.
Experienced Guardianship Attorneys
We help clients navigate this process. If you have questions about getting appointed as guardian or abuses by a guardian, call us today to see how we can help. Our experienced probate attorneys have over a decade of experience with probate.
Call today for a confidential consultation, 210-436-6601.