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When we think about a guardianship, we often apply the concept to the guardianship of a child, but there are situations in life that may require the guardianship of an adult. At some point in your life, you may encounter a situation in which a loved one, such as an aging parent, can no longer make decisions for him or herself. In such situations, you may seek a court-ordered guardianship of your loved one in order to care for him or her, managing health and financial affairs.
Here are the answers to some frequently asked questions about adult guardianships in the state of Texas.
What is a guardianship?
Guardianship is the legal process to name an individual or entity (such as a state agency) as the protective guardian over an adult who is incapacitated. According to the Texas Probate Code, an incapacitated person is: “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter to himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.”
A court-named guardian makes decisions on behalf of the incapacitated individual.
What are the responsibilities of a guardian?
Chapter 13 of the Texas Probate Code defines the responsibilities of a guardian as including (but not limited to):
• Providing care, supervision, and protection for incapacitated persons who qualify for guardianship services under the laws of the state of Texas.
• Arranging for services, including medical, mental health, and/or services to persons with intellectual disabilities, for these persons under guardianship that qualify for such services.
• Arranging for placement in facilities, such as long-term care facilities, hospitals, or foster homes.
• Managing estates.
• Making medical decisions.
What must I do to get a guardian appointed for someone I know who meets the definition of an incapacitated person?
The first step in getting a guardian appointed for an incapacitated individual is to hire an attorney who has experience with Texas guardianship laws. There are specific procedures in place for proving the need for guardianship, and most are too complicated for one to understand without the help of a lawyer. Also, in most cases, the courts will not consider an application for guardianship that has not been filed by an attorney.
Once you have hired an attorney, the next step is to clearly and convincingly prove incapacitation of the individual in question. Requirements for this include filing a certificate with the court from a doctor who has examined the individual. An attorney can advise you on the specific requirements for the certificate and examination.
After the application for guardianship and certificate from a physician have been filed with the court, the court will appoint an attorney, called an attorney ad litem, to represent the individual in question.
Who can be appointed guardian?
Once the court has determined that a guardian is needed, there is a priority list the court must follow in selecting a guardian. If the incapacitated individual is an adult, the following persons have priority for guardianship in this order:
• the individual designated by the incapacitated individual (ward) prior to his or her incapacitation in a properly executed designation of guardian
• the individual designated by the last surviving parent of the ward in a properly executed designation of guardian
• the ward’s spouse
• next of kin
• non-relative
In cases where more than one person of the same priority desires to be guardian, the court will choose the person best qualified to serve. The court also has authority to skip over a person who ranks higher on the list of priority if that individual is determined ineligible. Some factors that might determine ineligibility include (but are not limited to): age, incapacitation, conflict of interest with the ward, inexperience, lack of education, incapable of properly managing the ward’s estate, someone who is not a resident of Texas and has not designated an agent in Texas for service of process.
If you have questions about adult guardianship, or believe a loved one is in need of a guardian, contact the experienced legal team at The Law Offices of Tim O’Hare for a reputable attorney who can review your case and advise you on the most ideal course of action.
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