Guardianship

What is guardianship? It is a court-created relationship between an individual that the Court determines is incapacitated and unable to care for themselves (ward) and another person or guardianship program to make decisions for the ward (guardian). The guardian is responsible for the care and finances of the ward. This process removes rights from the ward and grants the guardian with the authority to make decisions for the ward.

Creation of a Guardianship

Guardianship is created through a court process. An application for guardianship is filed with the Court. A healthcare provider must complete a Health Care Provider’s Certificate of Medical Examination (CME) on the ward. The Court will appoint an Attorney ad Litem to represent the ward in this process. If the Court is a Statutory Probate Court, they will also appoint a Court Investigator. The Attorney ad Litem and the Court Investigator will visit with the ward. Once this is done, a CME is filed with the court, and all the required notices are completed, there will be a court hearing to prove up the guardianship.

Guardian Representation

To file the application for guardianship, you will need to be represented by an attorney that has completed the required training and received guardianship certification from the State Bar of Texas. This representation must continue throughout the court process. If it is only guardianship of the person, an attorney isn’t needed once the guardianship is created. You will need to file an annual report of the person. If it is a guardianship of the estate or a guardianship of the person and estate, you need to have an attorney to assist with filing the annual accounts.

Restoration of Rights

A ward under guardianship can request for their rights to be restored by writing a letter to the court or the guardian can retain an attorney to file an application for the restoration of rights for the ward. If the ward writes a letter to the court, the court will appoint an attorney as Guardian ad Litem to investigate the best interests of the ward and if their rights should be restored. A CME will have to be completed on the ward and filed with the court. Restoration of Rights for the ward is very similar to creating guardianship but only in reverse. Instead of proving the ward can’t care for themselves or make decisions for themselves, it must be proven that they can care for themselves and make decisions for themselves.

Aging-out

When your child turns 18, they are now legally their own guardian. Prior to them turning you, as the parent was able to make decisions for them concerning: finances, medical, where they live, among other decisions. Once they turn 18 you can no longer make those decisions for them. What happens if your child is not able to make those decisions for themselves due to a diagnosis or an injury that causes them to be unable to make these decisions? You can contact an attorney to file an application with the court to be their legal guardian. It is the same process if the ward is 18 or 99.

Management Trust

If it is only an estate that needs to be managed for a ward or a minor, a management trust is an option. It is, also, court created and there is still the need to prove that the ward can’t manage their estate. A CME will need to be completed on the ward and filed with the court. If it is for a minor, their incapacity is legally created since they are under 18 and a CME isn’t required. Usually, a bank or other corporate fiduciary is appointed as the trustee. There is still court oversight and an annual account needs to be filed with the court. If it is for a minor the trust will remain until the minor turns 25.

Alternatives to Guardianship

There are least restrictive alternatives (LRAs) to guardianship that should be looked at and considered before filing an application for guardianship. Some LRAs need to be done before the person becomes incapacitated. This is a list of LRAs but it is not an all-inclusive list: Medical and Durable Power of Attorneys, Supported Decision Making Agreement, Trusts, Representative Payee, and Supports and Services. Power of Attorneys and Trusts needs to be executed before incapacity of the person. The person needs to understand what they are doing. If the ward is married and the assets of the estate are community property, the spouse can manage the estate as community administrator. This will need to be done through the court but once created, there isn’t any court oversight like there is with a guardianship or court created trust.