Disqualified to Serve

TRS really wants to help out his elderly aunt, who is suffering from dementia. He is going to apply to be  her guardian.

There are two kinds of guardianship in Texas: person and estate. TRS thinks he wants to be appointed for both.  It’s an admirable thought, provided that TRS can qualify to serve.    

Interestingly, Texas law doesn’t list qualifications for a guardian. It starts at the other end of the spectrum by defining what would disqualify TRS. Some of the grounds are straightforward, while others are left up to the discretion of the Judge.

Here are the grounds:

  • TRS can’t be a minor or incapacitated.  
  • TRS can’t be incapable of properly and prudently managing and controlling the person or the estate of the ward. (This is where the Judge considers TRS’ experience and education.)
  • TRS can’t be “unsuitable.” (This gives the Judge almost complete discretion to deny anyone appointment as a guardian.)
  • TRS’s conduct cannot be notoriously bad. (This is another ground where the Judge uses discretion.)
  • TRS shouldn’t have a final conviction of any sexual offense, aggravated assault, injury to a child, elderly individual or disabled individual, abandoning or endangering a child, terroristic threat, or continuous violence against his aunt’s family. The final conviction isn’t an absolute barrier, but there is a presumption that his appointment wouldn’t be in his aunt’s best interests.  
  • TRS can’t have a conflict of interest with his aunt. This means he can’t owe his aunt money, can’t assert a claim that is adverse to his aunt or her property, and can’t be a party to a lawsuit that affects his aunt. TRS is also barred if his parents are in a lawsuit that affect his aunt. (This “conflict of interest” prohibition has been litigated in a lot of cases).
  • TRS can’t be appointed if his aunt expressly disqualified him in a written declaration of guardian.  
  • If TRS lives outside of Texas, then he can’t be appointed unless he has named an agent who resides in Texas.  
  • TRS can’t be the subject of a protective order that protects his aunt.

After TRS files his application, the court clerk is required to pull his criminal history record. The record is confidential and privileged and is for the exclusive use of the court.  

Assuming TRS makes it through the gauntlet and the court appoints him, then he has to “qualify” to serve. This time the term means he has to take an oath and file a bond with the clerk.

If TRS isn’t disqualified and he qualifies, then he can serve as guardian for his aunt. That’s when the fun really begins.

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The information contained in this article is general information only and does not constitute legal advice.