In Texas, as elsewhere in the United States, guardianship is a relationship created and monitored by a court. Although you may think of a guardianship in terms of protecting a child (like “Little Orphan Annie”), in Texas, the person who requires guardianship is almost always an incapacitated adult. Suppose you have a loved one who has suddenly or gradually become incompetent and can no longer make healthy or wise decisions regarding health or finances. In that case, it is time to seek out the services of an experienced Houston guardianship lawyer. Your Legacy Legal Care has several conveniently located offices in the Houston area from which to serve your needs. Our Houston elder law attorneys have been over the terrain of guardianships numerous times and are well-schooled in establishing one for the benefit of your loved one. Our goal is always to ensure that your loved one is legally protected and that you are comfortable in your new role.
What is a Guardianship?
Guardianship takes legal rights away from the individual (the ward) who cannot exercise them reasonably and gives them to a person appointed by the court (the guardian) to take care of the ward and protect their interests. Each guardianship is established to preserve the ward’s rights as much as possible. In each case, the court limits the guardian’s decision-making power to give the ward as much independence as they can handle responsibly.
Typically, guardianships are needed when the ward is mentally incapacitated and is not legally permitted to sign a power of attorney document. Guardianships are essentially designed to protect incompetent individuals from their poor judgment. If you have watched your family member’s mental capacity deteriorate, rest assured that you are not alone. In Harris County, there are about 400,000 persons who are affected by mental illness.
Types of Guardianships in Texas
There are two basic types of guardianships in Texas:
- Guardian of the Person—an individual appointed to make personal, medical, and welfare decisions for the ward
- Guardian of the Estate—a person appointed to make financial decisions regarding the ward’s assets that will preserve and protect those assets
Suppose you become a guardian for an ailing elderly relative. In that case, you may request permission from the court to transfer a portion of your ward’s assets to allow the ward to qualify for government benefits, such as Medicaid. Whether you hold either or both guardianship positions, you will have to prove that any expenses you have paid as a guardian are directly related to your ward’s care. The courts strictly monitor such expenses.
Ask Your Houston Guardianship Lawyer What the Court Considers Before Granting Guardianship
The granting of guardianship is a serious matter since rights will be taken away from one person and given to another. You are even required to take an oath.
The court must be convinced of:
- The extent of the ward’s incapacity
- The genuine need for guardianship proceedings
- The most appropriate person to be appointed guardian, taking into account “the best interest of the ward”
At Your Legacy Legal Care, we will guide you through the guardianship proceedings. We will ensure that you have the necessary detailed letter or certificate from a licensed physician to persuade the court of the need for guardianship. If you have decided that the guardian should be a compensated professional rather than a family member, we will see that the chosen person has the required certification.
How Are the Rights of Wards Protected?
The law recognizes that a person may be more competent than they are given credit for and has made provisions for protecting wards from having their rights needlessly or maliciously taken away. With this in mind, the law allows wards and proposed wards to hire attorneys as long as the court deems those wards to have the intellectual capacity to sign a contract. The court also authorizes the removal of any guardian (family member or not) who abuses, exploits, or neglects an elderly ward who is disabled under Tex. Est. Code § 1 1203.051. Removed guardians, however, can file for reinstatement within 30 days of their dismissal under Tex. Est. Code § 1203.056.
The Judicial Branch Certification Commission
The Judicial Branch Certification Commission assumed the roles and tasks of the Guardianship Certification Board as of September 1, 2014. Texas Legislature created The Judicial Branch Certification Commission, a branch of the Texas Supreme Court. This board has developed certification requirements for “private professional guardians” and sees that they are met. Any guardian in Texas who receives monetary compensation for serving as a guardian must be certified by the state. Such guardians must pass a written examination and meet specific educational and work experience requirements before being approved. Family members, friends, attorneys, and financial institutions playing the role of guardians do not have to meet the board’s requirements.
Houston Guardianship Resources
- Tex. Est. Code – Guardianship and Related Procedures
- Guardianship Registration Form—the application to be registered as a guardian. This can be submitted through the following avenues: by mail—P.O. Box 12066, Austin, TX 78711, or 205 W. 14th St., Ste. 600, Austin, TX 78701; by fax at (512) 463-1117; or by email
- Your Duties as Guardian of the Person
Discuss Your Options With a Houston Guardianship Attorney
The Houston guardianship attorneys at Your Legacy Legal Care are well aware of the legal and emotional complexities surrounding the establishment of guardianships in Texas. If you need assistance regarding guardianship matters, get in touch with one of our Houston offices.