In Texas, a guardianship is a legal relationship established by a court of law that appoints a guardian to care for someone who is incapacitated and unable to care for themselves.
In Texas, the law defines an incapacitated person as:
The person the guardian is caring for is known as the “ward.”
There are four different types of guardianships in Texas:
In Texas, only one person may be appointed as guardian of the person or estate, but one person may be appointed guardian of the person and another person may be appointed guardian of the estate if it is in the best interest of the incapacitated person or ward.
A guardian’s responsibilities can include:
Not just anyone can be a guardian. A guardian is an important responsibility. The court typically gives preference to family members over non-family members.
If the ward is a minor, the courts will appoint a guardian in the following order:
If the ward is an adult, guardianship will be assigned in the following order:
Who cannot be a guardian
Who can be disqualified as a guardian:
The applicant files an application for Appointment of Permanent Guardian to the court, usually in the county where the proposed ward resides. In Travis County, all applications are filed with the Probate Court.
The applicant must also provide an examination report by a physician or psychologist licensed in Texas, attesting to the ward’s mental and physical ability. The examination must not have been performed more than four months before the application for guardianship is filed.
The court will then appoint an attorney ad litem who will meet with the proposed ward, attorney of record, family members, and any other persons necessary to determine if appointing a guardian is the best course of action. The ad litem advocates on behalf of the proposed ward.
A proposed guardian must seek certification by the Texas Office of Court Administration Judicial Branch Certification Commission (JBCC) prior to being appointed and prior to the hearing.
You then appear in court. Typically, the proposed ward must be present at the hearing.
At the hearing, the court must find by a preponderance of the evidence that:
The court must also find by clear and convincing evidence that:
If the court finds that the proposed ward is totally unable to care for themselves, manage their property, drive a motor vehicle, vote in a public election, among other things, the court may appoint a guardian of the proposed ward’s person or estate, or both, with full authority over the incapacitated person.
If the propose ward does not lack the capacity to do all the necessary tasks to take care of themselves, the court may appoint a guardian with limited powers.
If the court determines that the proposed ward is an adult who possesses the capacity to care for themselves as would any “reasonably prudent person,” then the court will dismiss the application for guardianship.
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