What is a Guardianship in Texas?
A guardianship is a court-established relationship between a person who needs help, referred to as a “ward,” and a person or entity appointed to help the person in need, referred to as a “guardian.”
When guardianship is established, the person in need becomes a ward of the court. The guardian is the person designated by the court to take care of the ward and/or of the ward’s estate. The guardian takes an oath to carry out these duties.
A guardian must be:
- At least 18 years of age
- Not incapacitated
- Not in debt to the ward
- Not involved in a property or contract or other legal dispute with or concerning the ward
- Not convicted of certain offenses including those involving sex, abuse, abandonment, terrorism, or other violence
- Not a person the court deems otherwise unsuitable for protecting the best interests of the ward
The court gives priority to family members of the proposed ward and the ward’s preference when appointing a guardian. Lay guardians are generally family members. Public administrators, usually elected officials, may be appointed to serve as guardians of a ward who has no family or no family members willing to serve. There are also professional guardians, certified to serve and contracted by the Texas Department of Aging and Disability Services or an approved guardianship program.
A guardian is required to carry out the duties as charged by the court that may include:
- Paying the ward’s bills
- Making decisions that maintain the ward’s assets
- Ensuring the ward’s living and medical needs are met to the extent allowed by the ward’s resources
- Filing with the court any reports, accounting, and financial statements as requested
- Asking the court for permission and approval for actions taken on the ward’s behalf
The guardian may not:
- Prevent the ward from making poor choices and decisions
- Take responsibility for the ward’s poor choices, including illegal acts
- Personally support the ward financially or be responsible for the ward’s debts
- Force the ward to take medications
- Be responsible for providing 24/7 supervision of the ward
- Place the ward in a mental health facility
Types of Guardianships in Texas
There are two primary types of guardianships in Texas — guardian of the person and guardian of the estate. The court can appoint a single guardian to serve both as guardian of the person and of the estate, or separate guardians for each.
A guardian of the person makes decisions regarding the ward’s personal matters, including housing, medical care, and education. A guardian of the estate handles the ward’s financial affairs and makes decisions regarding property and assets. Either can be full guardianships, requiring that you make nearly all decisions for the ward or limited guardianships in which the court assigns specific areas of responsibility.
The court may also award a temporary guardianship if a ward’s person or estate is in imminent danger.
How are Guardians Appointed?
If you wish to become a guardian, you will need an attorney to represent you. The proposed ward would be represented by a different attorney, appointed by the court. Your attorney will file an application for guardianship with the court, a copy of which will be served to the proposed ward. The ward will be evaluated for incapacitation by a physician.
You (with your attorney) and the ward (with their attorney) will appear in court where you will make your case for guardianship. If appointed, you will sign an oath to uphold your duties and post a bond with the court. The clerk of the court will then issue “Letters of Guardianship” that document your role and authority. The letters are valid for 16 months, after which you must file an annual report with the court and post a new bond.
How an Attorney Can Help
Guardians assume tremendous responsibilities for their wards. Conversely, the personal and financial well-being of a ward relies upon a guardian’s dedication to carrying out the oath they take to serve. Although they can express a preference for who serves as their guardian, few wards are able to name them before they become incapacitated. You can talk to a Texas estate planning attorney about designating a guardian in your estate plan.
If you have a loved one who needs a guardian, or if you have been named a guardian, it is wise to consult with an attorney about your role and responsibilities. I can help answer your questions, establish guardianship in your estate plan, and help you understand the appointment process.