A guardianship is a court-supervised administration for a minor or for an incapacitated person. A person – called the guardian – is appointed by a court to care for the person and/or property of the minor or incapacitated person – called the ward. A guardianship of the person deals specifically with the person and living arrangements regarding the ward. A guardianship of the estate deals with control over the financial assets of the ward.
Texas law has very specific procedures in place for proving the need for a guardianship and getting a guardian appointed. These procedures are too complicated for a lay person to undertake without a lawyer's help, and most courts will not entertain guardianship applications filed by non-lawyers. To get a guardianship, incapacity must be proven by clear and convincing evidence—a very high standard. Unless the proposed ward is a minor, a certificate from a doctor who has examined the proposed ward must be filed with the court. There are specific requirements for the certificate, and it must be dated within 120 days of the filing of the application for guardianship, so you should consult an attorney for the specific requirements before the doctor conducts the examination which forms the basis for the certificate. The court will appoint an attorney, called an attorney ad litem, to represent the proposed ward, since the granting of a guardianship takes away some of the ward's civil rights. Texas courts typically employ the doctrine of least restrictive alternatives in guardianship cases, taking away as few of the ward's rights as possible and giving the guardian only those rights and powers as is necessary to protect the ward or the ward's property.
If the court decides that a guardian is needed, Texas law provides a priority list for choosing the guardian. If the ward is a minor, the following persons have priority in the following order: parents; the person designated by the last surviving parent of the ward in a properly executed designation of guardian; the nearest ascendant in the direct line of the minor (ascendants are grandparents, great-grandparents, etc.); next of kin; and a non-relative.
If the ward is an adult, the following persons have priority in the following order: the person designated by the ward prior to his or her incapacity in a properly executed designation of guardian; in some cases, the person designated by the last surviving parent of the ward in a properly executed designation of guardian; the ward's spouse; next of kin; and a non-relative.
If more than one person of the same priority wishes to be guardian, the court chooses the one who is best qualified to serve. In considering priority, it is important to note that the court has the authority to skip over a person higher on the priority list if the court finds that person to be ineligible. Because of these priorities, it is important for an adult individual who is worried about his or her possible future incapacity to consider designating those persons he or she wishes to serve as guardian and those persons he or she wishes to disqualify from serving as guardian, especially if a non-relative is preferred.
In general, a guardian of the estate is a fiduciary and is held to the high standards to which all fiduciaries are held in caring for the estate of the ward. The guardian of the estate is required to post a bond in an amount set by the court to assure that the guardian fulfills his or her duties. Generally the guardian is reimbursed for the cost of the premium from the ward's estate. The guardian of the estate also is required to publish a notice to creditors in a local newspaper and file an inventory of the ward's assets. Each year, the guardian of the estate is required to file an annual account, detailing the receipts and disbursements during the year. When the guardianship terminates, the guardian must file a final account. The annual and final accounts are complicated enough that a lawyer's assistance is needed.
In general, a guardian of the person is a fiduciary and is held to the high standards to which all fiduciaries are held in caring for the ward. The guardian of the person is required to post a bond in an amount set by the court to assure that the guardian fulfills his or her duties. Unless the guardian's duties are restricted by the court, the guardian of the person is entitled to the charge and control of the person of the ward and has the right to have physical possession of the ward and to establish the ward's domicile, the duty of care, control and protection of the ward, the duty to provide the ward with clothing, food, medical care and shelter and the power to consent to medical, psychiatric and surgical treatment.
Guardianship law is designed to protect the rights and interests of the ward, and it does so by establishing procedures intended to assure guardian compliance with the rules. These procedures necessitate a lot of lawyer involvement. Establishing a guardianship can be expensive, and the costs of administering a guardianship of the estate can easily exceed the annual income of the estate. For this reason, it is usually a good idea to see if there are any alternatives to a guardianship before starting down the guardianship path.