Legal Guardianship Guide: The Process of Appointing a Guardian

by | Apr 8, 2016 | Guardianship

grandparentguardianGuardianship is the process of appointing someone to make decisions for another who is unable to make their own decisions, either because they are a minor or because they are mentally incapacitated.  Guardianship can be a difficult process as the courts try to decide whether a guardianship is necessary and, if so, who is the right person to serve as guardian.

There are alternatives to guardianship, but they won’t always have the best interest of the individual in mind and can be ineffective or unavailable.

Who’s Involved in the Guardianship Process?

The court and lawyers are always involved in the process, but there are some other key players you should be aware of when talking about appointing a guardian:

  • Incapacitated Person. A minor, with or without a physical or mental disability, or an adult with a mental or physical condition who is unable to provide food, clothing, or shelter for himself or herself, unable to care for their own physical health, or unable to manage their own financial affairs.
  • Guardian. A guardian is a person who is appointed by a court to make decisions for an Incapacitated Person. A Guardian who is appointed to make financial decisions for an incapacitated Person is called the Guardian of the Estate.  A Guardian who is appointed to make decisions related to the health and well-being of an Incapacitated Person is called the Guardian of the Person. An Incapacitated Person can have one or the other or both types of guardians.  If the Incapacitated Person has both a Guardian of the Estate and a Guardian of the Person, the same person can be named for both positions or there can be separate Guardians for the person and the estate.  After the filing of an application for guardianship, but before a Guardian is appointed, the applicant for Guardian is referred to as the Proposed Guardian.
  • Ward. Ward is the term used to refer to an Incapacitated Person who has been appointed a Guardian by the court.  Before a Guardian is appointed, this person is referred to as the Proposed Ward.
  • Interested Person. Any person interested in the welfare of an Incapacitated Person in a guardianship proceeding.

Naming a Guardian Before the Need Arises

walking on the beach with guardianThere are several methods for naming someone to serve as Guardian before the need arises.  When the need does arise, the person named as Guardian is typically appointed by the court unless the court finds some reason that disqualifies that individual from serving as Guardian.  Here are several methods for appointing a Guardian before the need arises:

  • For a Minor. Parents of a minor child may name their choice of Guardian in their last will and testament.
  • For an Adult Incapacitated Child. Parents of an adult incapacitated child also may name their choice of Guardian in their last will and testament.
  • For an Adult Person. An adult person may name someone else to serve as their Guardian in the case of future incapacity.

 

Priority to Serve as Guardian

Guardian of a Minor. The order of priority for Guardian of a minor is as follows:

  • Person named by the minor’s parents to be Guardian if both parents are deceased.
  • Nearest ascendant (those up the family tree – parents are the natural Guardian of their own children) to the child (the court decides if there are two equal ascendants based on the best interest of the child).
  • Nearest of kin (the court decides if there are two equal kin based on best interest of the child).
  • If no relatives, the court decides based on the best interest of the child.
  • If the minor is at least 12 years old, they can file a written statement requesting a specific person to be their Guardian. The court will appoint the minor’s choice of Guardian as long as the choice is in the minor’s best interest.

Guardian of an Incapacitated Adult. The order of priority for Guardian of an incapacitated adult is as follows:

  1. Person designated by the Incapacitated Person in writing prior to becoming incapacitated.
  2. Incapacitated Person’s spouse.
  3. Nearest of kin (the court decides if there are two equal kin based on best interest of the Proposed Ward).
  4. Person best qualified to serve as Guardian (the court decides if there are two equally qualified persons based on best interest of the Proposed Ward).
  5. Before appointing a Guardian, the court will consider the Proposed Ward’s preference and give due consideration to that preference.

Starting the Guardianship Process – Filing an Application for Guardianship

Typically, the guardianship process is started when an Interested Person hires an attorney to assist them in filing an application to appoint a Guardian for the Incapacitated Person.  This application contains:

  • Information about the Proposed Ward, including the nature of their incapacity
  • Information about the Proposed Guardian
  • Whether or not there are any feasible alternatives to guardianship

After the application is filed, the court appoints an attorney, called an “Attorney ad Litem,” to represent the Proposed Ward. Some courts (such as those in Harris County) immediately appoint a court investigator to do a preliminary assessment and report on the Proposed Ward and the Proposed Guardian.  When there is a contested guardianship or in unusual circumstances, the court often appoints another attorney, called a “Guardian ad Litem,” to further investigate and to write a report making a recommendation to the court about whether there is a need for a guardianship and who should be appointed as Guardian if one is needed.

“What happens at a Guardianship Hearing?”

Going over the guardianship processDuring the hearing the court will inquire into the ability of the Proposed Ward to care for themselves and manage their property. In order to appoint a Guardian, the Court must find by clear and convincing evidence (more likely than not) that:

  • The Proposed Ward is an Incapacitated Person,
  • It is in the Proposed Ward’s best interest to have the court appoint a Guardian
  • The Proposed Ward’s rights or property will be protected by the appointment of a Guardian
  • Alternatives to guardianship have been considered and determined not feasible, and
  • Supports and services available to the Proposed Ward that would avoid the need for a Guardian have been considered and determined not feasible

Disqualifying a Guardian

The court can disqualify a person as Guardian if they are a minor or a person who because of inexperience, lack of education, or other good reason, is incapable of managing the person or estate of the Proposed Ward.

A person cannot be appointed as Guardian if their conduct is notoriously bad. It is presumed not to be in the best interest of the Proposed Ward if the person has been convicted of:

  • Any sexual offense
  • Aggravated assault
  • Injury to a child or to the elderly or a disabled person
  • Abandoning or endangering a child
  • A Terrorist threat
  • Continuous violence against the family of the ward or incapacitated person

The Court must find by a preponderance of the evidence (imagine that the evidence on the scales of justice tip just slightly in favor of each of the following) that:

  • The person to be appointed is eligible
  • If a Guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school
  • The Proposed Ward:
    • Is totally without capacity, or
    • Lacks the capacity to do some, but not all, of the tasks necessary to care for themselves or manage their property.

Contesting a Guardianship Proceeding

When a Proposed Guardian files an application, the Proposed Ward or any other Interested Person may contest the appointment of the Proposed Guardian.  A guardianship application may be contested based on claims that:

  1. The Proposed Ward is not incapacitated and does not need a Guardian,
  2. There is someone with higher priority to be appointed Guardian of the Proposed Ward,
  3. There are alternatives to guardianship or supports and services available that make appointment of a Guardian unnecessary, or
  4. The Proposed Guardian is disqualified from serving as Guardian for the Proposed Ward.

Consult an Experienced Guardianship Attorney

We recommend that you consult an experienced guardianship attorney when walking through this decision. At Romano & Sumner, we have a great deal of experience with the guardianship process. If you have any questions, or would like to make an appointment to talk with us, please don’t hesitate to contact us today.