This is the first in a three-part series on Texas guardianships.
You might be tempted to skip a three-part series on Texas guardianships because it will never happen to you.
So naïve.
I’ve handled Texas guardianship cases for over 20 years. I’ve served as a guardian ad litem, attorney ad litem, and third-party guardian. I’ve represented applicants, contestants, and other interested parties.
I’ve seen children fight over a parent, parents fight over an adult child, brothers and sisters fight over a sibling, creditors fight over a debtor, and exploiters fight over their victim. I’ve seen people have to choose between filing for guardianship over their spouse or for divorce. I’ve seen defendants in a civil suit file for guardianship over the plaintiff suing them.
So, believe me when I say: it can happen to you.
An Introduction to Guardianship Over an Incapacitated Adult
Guardianship is a court-created relationship involving an incapacitated person. Let’s use an example to explain the terms and requirements of a simple guardianship.
What is an Incapacitated Adult?
An incapacitated person is an adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for him/herself, care for his/her own physical health, or manage his/her own financial affairs.
Simple Adult Guardianship
Your mom is living by herself. Over the last year, her behavior has changed. She can’t remember recent events. She doesn’t wash her hair or bathe. She wears the same clothes every day, refuses to go to the doctor, and often forgets to eat. She cannot remember to take her medication. Recently, she gave her credit card information to a nice man who called her on the phone and now has a $20,000 unapproved charge.
Worse, she is physically combative.
You contact an attorney who is certified to act as an ad litem in Texas (these are the only types of attorneys who can represent a party in a guardianship proceeding). You discuss whether there are alternatives to a guardianship that will protect your mom, and conclude there are not.
The Steps to Adult Guardianship
1. Apply to be a Guardian
The attorney files an application for guardianship of the person and estate over your mom. You are the applicant. Your mom is the proposed ward.
2. Fulfill Requirements
Because you are asking to be appointed your mom’s guardian, you take a required guardianship class and submit your personal information for a background check.
3. Parties are Notified
Your mom is personally served with the application. Other notices are publicly posted or served on interested parties.
4. Attorney Files Necessary Documents
Your attorney posts a cost deposit to pay for an ad litem. Your attorney files a Certificate of Medical Examination regarding your mom, an affidavit containing contact information, and a proposed order of guardianship. Some courts require additional documents.
5. Court Investigator and Attorney Ad Litem are Appointed
The Judge appoints a court investigator. The Judge also appoints an attorney – known as an attorney ad litem or AAL – to represent your mom.
6. Court Investigator and AAL Evaluation
The court investigator and AAL personally visit with your mom and you. They are entitled to see your mom’s financial and medical records. The court investigator then files his or her report.
7. Court Appearance to be Appointed
Your mom and you appear in court for a final hearing with the attorney ad litem and the court investigator. You are appointed her guardian and post a bond. You are required to file an annual report every year, and possibly an accounting.
8. Simple Guardianship is Complete
That is a simple guardianship. No contest, temporary restraining order, temporary guardianship, motion in limine, appointment of guardian ad litem, mediation, or interlocutory appeal.
Hammerle Finley is Here to Help With Adult Guardianship
If you or a loved one have questions about guardianship, schedule a consultation with our team of expert attorneys today.
And don’t forget to read the next two parts of this guardianship series:
- Part 2 will examine a complex guardianship
- Part 3 will discuss guardianship for a disabled (special-needs) child who is turning 18
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
