To ensure asset control in the effective guardianship of a minor or senior relative with a mental health disorder, you should speak with an experienced guardianship attorney.
Our law firm is designed for people just like you — individuals and couples seeking adequate long-term care for minor children or family elders who have special needs.
When a loved one can no longer safely manage personal, medical, or financial decisions, families are often forced to confront difficult questions. In some cases, a guardianship may be necessary to protect a vulnerable adult or a minor. A Texas guardianship can provide legal authority for a responsible person to make decisions on behalf of someone who is incapacitated, but it is also one of the more serious proceedings in probate court because it can remove important legal rights.
At the Aldrich Law Firm, PLLC, we help clients with guardianship matters in Texas, including applications to establish guardianships, contests involving proposed guardians, and related probate court proceedings. Whether you are trying to protect an elderly parent, an adult child with special needs, or a minor who needs a legal guardian, it is important to understand how Texas guardianships work, when they are appropriate, and what the court requires before one is created.
About Guardianship
A guardianship is a court-supervised legal relationship in which one person or entity is appointed to act for another person who is unable to manage certain aspects of his or her own affairs. The person who is the subject of the proceeding is commonly referred to as the proposed ward. The person appointed by the court is the guardian.
In Texas, guardianships are typically divided into two categories: (1) a guardian of the person and (2) a guardian of the estate.
Guardians of the person are appointed to make decisions related to the well-being and care of a person, with responsibilities that include:
- Providing for the care, supervision, and protection of the ward
- Arranging medical care for the ward
- Arranging for the placement of the ward in long-term facilities or hospitals
- Making medical decisions
Guardians of the estate are appointed to make decisions related to the ward’s finances. This guardian’s responsibilities can include:
- Taking possession of the ward’s assets
- Making decisions related to the management and investment of assets
- Collecting rent, claims, and debts owed to the ward
- Enforcing legal obligations owed to the ward
- Defending the ward in any legal actions pending against them
In some cases, the same person serves in both roles. In others, the court may appoint different individuals depending on the circumstances.
Because a guardianship can significantly affect a person’s independence, Texas courts generally treat it as a remedy of last resort. Before creating a guardianship, the court must be satisfied that the proposed ward is incapacitated and that less restrictive alternatives are not sufficient.
When Guardianship is Necessary
It is not uncommon for loved ones to experience medical issues or disabilities that require the help of family members. Even the onset of old age can sometimes make it difficult for individuals to manage all of the details of their day-to-day care and financial needs. While this help can take many forms, when a loved one becomes incapacitated and unable to manage even basic responsibilities, it may be time to consider a guardianship. Texas law allows families to establish legal guardians who can assist incapacitated family members in making important decisions and handling legal and financial issues that arise.
Families often begin considering guardianship when they see that a loved one is no longer able to make safe or informed decisions, which can happen for many reasons, including:
- dementia or Alzheimer’s disease
- intellectual or developmental disabilities
- serious mental illness
- traumatic brain injury
- physical or cognitive decline associated with aging
- incapacity resulting from illness, injury, or stroke
- circumstances involving a minor who has received property or whose parents are unable to care for the child
A guardianship proceeding may become necessary when there is no valid power of attorney in place, when existing planning documents are inadequate, or when there are disputes among family members about who should be in charge. In some situations, the need for a guardianship only becomes apparent after financial exploitation, neglect, or a medical crisis has already occurred.
The Guardianship Process in Texas
A guardianship case is generally filed in probate court or a county court exercising probate jurisdiction. The process can be detailed, and strict legal requirements apply. Although every case is different, a Texas guardianship proceeding often includes the following steps, all of which a San Antonio guardianship attorney can assist you with:
#1: Completing the Application
The guardianship process begins by filing an application with the county court where your ward lives or where their primary assets are located. The application must contain specific information required by Texas law.
#2: Medical Evidence of Incapacity
In most adult guardianship cases, the court then requires a doctor to evaluate the ward and certify that they are actually incapacitated and that guardianship is appropriate under the circumstances. This often takes the form of a physician’s certificate or similar medical documentation addressing the person’s condition and functional limitations.
#3: Appointment of an Attorney Ad Litem or Other Court-Appointed Representative
Because the rights of the proposed ward are at stake, the court will typically appoint an attorney ad litem or other representative to protect the proposed ward’s interests during the proceeding.
#4: Notice and Service
The law requires notice to certain interested parties. The proposed ward must also be personally served with citation in most cases.
#5: Investigation and Court Review
Depending on the county and the type of case, a court investigator or court visitor may review the circumstances and make recommendations.
#6: Hearing
Next, the court will hold a hearing to review the nature of the guardianship application. If the court comes to the conclusion that there is a need for a guardian, it will appoint one.
#7: Qualification of the Guardian
If the court appoints a guardian during the hearing (step above), that person may have to qualify by taking an oath, filing a bond in some cases, and completing required training before letters of guardianship are issued.
Duties and Responsibilities of a Guardian
Serving as a guardian in Texas is a serious legal responsibility. A guardian does not simply step into a loved one’s life and act without oversight. Guardians are fiduciaries, which means they owe legal duties to the ward and must act in the ward’s best interest.
Depending on the type of guardianship, a guardian’s duties may include:
- arranging appropriate care and housing
- consenting to medical treatment when authorized
- protecting the ward from neglect, abuse, or exploitation
- managing income and paying bills
- safeguarding assets
- seeking court approval for certain transactions
- filing inventories, accountings, annual reports, or other required documents
Guardianships are supervised by the court. A guardian who fails to comply with legal duties can face removal, personal liability, or other sanctions.
About Temporary or Emergency Guardianship
Some situations cannot wait for the normal pace of litigation. If a person faces an imminent risk of substantial harm to health, safety, or property, a temporary guardianship may be necessary. In these situations, Texas law allows a guardian to take immediate temporary care of a ward or a ward’s estate because they or their assets are in immediate danger.
Temporary guardianships typically last only 60 days to provide enough time to address immediate concerns. If the underlying issue does not resolve, temporary guardians may be able to extend their guardianship, but must also look to establish a more permanent solution. A temporary guardianship is not a shortcut around the normal requirements; it is an emergency measure designed to address immediate danger.
Get The Information You Need To Make Wise Choices – Speak with a San Antonio Guardianship Attorney Today
Our firm is here to pursue the smart course of action for you and your family. We will work with you to figure out exactly how to make that work. Contact the Aldrich Law Firm. Your initial consultation can be arranged right now with a San Antonio guardianship attorney at (210) 399-3964 or by email message.
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