An incapacitated person over the age of eighteen may need someone to manage his or her personal and financial affairs, and in the State of Texas referred to here as ‘the State,’ a court with the appropriate jurisdiction, here ‘the Court,’ may appoint a guardian to manage either or both under the Court’s supervision. The guardian responsible for the person’s personal affairs is called the Guardian of the Person, and the guardian making financial decisions is called the Guardian of the Estate. Because a guardianship requires the Court to strip away some or all of a person’s basic rights to make health and/or financial decisions for themselves, the State requires very detailed and particular steps to protect the rights of the person, referred to as the ‘Ward.’ The State also requires that the process include the exploration of less restrictive alternatives, and the prospective guardian should discuss all such matters with a competent attorney before actually applying.
A Guardian of the Person may make decisions about a Ward’s place of residence, certain medical treatments, and similar decisions about a Ward’s well-being. A Guardian of the Estate may make financial decisions, like selling property in order to raise funds for the Ward’s care and paying the Ward’s bills. However the Guardian of the Estate must ask the court for permission and receive a court order before selling property. In fact, the Court must approve many other actions before either guardian may act.
To become a guardian of an adult, the proposed guardian or applicant must first retain an attorney licensed in Texas and certified for guardianship cases. The proposed guardian or the attorney representing the proposed guardian generally takes the following steps:
- File an application for the guardianship with the county judge or Statutory Probate Court, if there is one, where the proposed ward resides.
- Ask the Court to appoint an attorney ad litem to represent the proposed Ward in the proceedings.
- Complete a background check and take an online or an in-person training course provided by the Judicial Branch Certification Commission (JBCC).
- Procure a doctor’s evaluation detailing the cognitive deficits of the proposed Ward to establish whether and to what extent the Ward needs a guardian.
- Request a hearing before the Court, and once one is set provide official notices to any interested parties, some of whom may have to waive their right to serve as guardian.
- Appear before the Court to present evidence on the appropriateness of creating a guardianship. The proposed Ward has the right to appear as well. If the Court finds that a guardianship is necessary, the Court will sign an order appointing a Guardian of the Person or a Guardian of the Estate or both and usually, order the Guardian to post a bond.
- Post the bond. The size of the bond varies depending on whether the Guardian is of the Person and/or the Estate and the size of the estate.
- Request Letters of Guardianship, the Guardian’s credential to act for the Ward.
- Submit an inventory of the Ward’s assets to the Court within 30 days and publish a notice to creditors in the local newspaper if the Court appoints a Guardian of the Estate.
- Provide the Court annually with a Report of the Person by the Guardian of the Person detailing the Ward’s health and well-being and an Annual Accounting by the Guardian of the Estate detailing the Ward’s current financial status and transactions made on behalf of the Ward.