Guardianship law is broken into two areas: guardianship of the person and guardianship of the estate. A guardian of the person cares for the ward’s personal and physical needs, such as housing, food, and medical decisions. A guardian of the estate cares for the ward’s financial needs and protects his or her assets. Guardianships typically involve minors who receive property, minors with disabilities coming of age, adults with injuries or mental health issues, and the elderly who have lost their mental capacity due to the effects of diseases like dementia or Alzheimer’s.
Anyone can file for a guardianship over another person, and the applicant does not have to volunteer to be the guardian. But the applicant must prove that the proposed ward is incapacitated, which requires proof documented by a physician.
Finally, depending on the severity and type of incapacity, there are times when capacity can be restored and the guardianship terminated. This is rare and is seen most often in individuals who recovered from traumatic brain injuries.
In deciding who will serve as guardian, the court considers many factors. First, did the proposed ward sign a Designation of Guardian? This document allows an individual to tell the court who they want to help them should they ever become incapacitated, a person can also expressly disqualify individuals from serving. While not binding on the court, it serves as a strong indicator of who will be most suitable. The Texas Estates Code also lays out a preferential list of potential guardians in the following order: spouse, family, and then any other suitable person.
While a guardianship proceeding can be relatively simple and clear-cut, this is not always the case, as discussed below.
Once a guardian is chosen and approved by the court, the guardian will be required to post a bond to the court and provide a yearly report to the court regarding the status and care of the ward.
A guardianship can be contested by the proposed ward who may argue that he or she is mentally competent and not in need of a guardian. Or other interested parties can dispute either the necessity of the guardianship or the choice of the guardian. A participant can also argue that there are less restrictive means than a guardianship, such as a valid power of attorney.
Temporary guardianships are hard to obtain, but necessary in many situations. A temporary guardianship will only be granted if you can prove that there is an immediate necessity to protect a person or the person’s property, and the harm to the person is imminent. An example would be where a relative is taking the ward’s money from bank accounts and without authority. It’s a high standard to meet, and requires, among other things, substantial evidence of incapacity.
A temporary guardianship will last up to 60 days, unless there is a contest to the guardianship. During that time, the temporary guardian or other interested party must gather the necessary information to demonstrate to the court a need to appoint to a permanent guardian.
Attorney fees in guardianship proceedings are usually paid from a ward’s estate, though this is in the court’s discretion and often not decided until the guardianship is decided. As a result, our Firm typically takes on a guardianship case based on an hourly fee schedule and a retainer, though every circumstance is different.