Guardianship Overview: Drastic Remedy is Complex

Let’s talk guardianship.

A guardianship is a court-created and supervised relationship.

There are three main players – the ward, the guardian, and the judge.

  1. The ward is a person who a judge has determined who, because of a physical or mental condition, is substantially unable to provide food, clothes, or shelter for himself or herself, cannot care of his or her own physical health or is unable to manage his or her own financial affairs.  This is called “incapacitated.”  A person can be either totally or partially incapacitated.
  2. The guardian is the person, or entity, appointed to protect the ward.  There are two types of guardians:  personal and estate.  The judge outlines the guardian’s powers in a written order.  Generally, the guardian of the person determines where the ward lives, who the ward sees, and all decisions regarding the ward’s medical treatment.  The guardian of the estate handles the ward’s finances and assets.
  3. The judge sits in the county court that has jurisdiction over the ward and over guardianships.  In Denton, Dallas, Tarrant and Collin counties, that would be a specialized probate court.

A guardianship action is usually started when someone files an application with the court.

The filing has a domino effect.  The court appoints an attorney, known as an attorney ad litem, to represent the proposed ward.  The proposed ward must be personally served with the application by an agent of the county sheriff’s office.   The proposed ward’s spouse and adult children must be notified, along with the residential staff, if the proposed ward resides in a facility.

The application must be supported by a completed Certificate of Medical Examination, with a physician opining that the proposed ward is incapacitated.

No guardianship may be granted without a full court hearing.  The proposed ward is given the option of attending the hearing.  If a guardianship is created, then the court signs a written order taking away specified rights from the ward and giving the guardian certain duties and rights.

One point that is fairly unique to Texas – a court can initiate the guardianship proceeding.  If a person is concerned about a proposed ward, then instead of filing an application the person can send a document called an Information Letter to the court’s staff detailing the concerns.

Guardianship is a drastic proceeding that can, and has, been the subject of abuse.  Over the past decade, a lot of changes have been made to the law.  One of these mandates that the ward be given a Bill of Rights that spells out the ward’s rights.  Another recent law requires that a guardianship can only be granted if there are not enough supports and services in the community to protect the proposed ward.  Yet another requires that all reasonable alternatives to a guardianship be considered before a guardianship be granted.

This last law is where a power of attorney comes in very handy in avoiding a guardianship.

This is a complicated area of law with high stakes for everyone involved.

Virginia Hammerle, with Hammerle Finley Law Firm, is board certified in Civil Trial Law by the Texas Board of Legal Specialization.  See hammerle.com for her blog and newsletter sign-up.  This column does not constitute legal advice.