A guardian/ward arrangement is a relationship in which a guardian manages the personal and/or financial affairs of the an incapacitated adult (the “ward”) and in some cases exercises authority over the ward. Guardianship arrangements with adult wards are usually approved because the ward is physically or mentally incapacitated and requires assistance in managing his or her affairs.
Although guardianships are frequently necessary for an adult who suffers from mental or physical infirmity, the possibility of abuse of this arrangement caused Texas to create a guardianship system that requires a court hearing to confirm a proposed guardian. Alternatives to guardianship, such as a Power of Attorney, are available and sometimes preferred.
Types of Guardianship
Texas recognizes two types of permanent adult guardianship: Guardianship of the Person and Guardianship of the Estate. A Guardian of the Person makes personal decisions for the ward (medical decisions, for example), and a Guardian of the Estate makes financial decisions. Both types of guardianships can be full or limited, and the same person can be appointed to both.
Selecting the Guardian
A guardian who is not a family member must be certified by the Judicial Branch Certification Commission (JBCC) (professional guardians) or by the State Bar of Texas (lawyers) before he can be appointed as a guardian. For further information, contact the JBCC or the Texas Guardianship Association. Close family members require no particular certification.
The Guardianship Application
Once a guardian has been identified, the first step in the adult guardianship process is to file an Application for Appointment of Permanent Guardian with the court where the ward resides. The application is quite detailed. The application should be accompanied by records of an examination conducted by a certified professional that prove the ward’s disability.
The court will issue a citation that will notify the ward of the application for guardianship over him. This citation must be delivered personally to the ward, similar to a Summons and Complaint for a lawsuit. This rule is designed to ensure that the ward is aware that someone is applying for guardianship over him.
The court will also appoint an investigator. The investigator will interview:
- The ward
- The attorney of record in the case (the proposed guardian’s attorney)
- Family members
- Social workers who are familiar with the ward
- Anyone else who might help the investigator decide whether to issue a recommendation for guardianship
After the investigation, the investigator will submit an investigation report to the court in which he either recommends or declines to recommend the guardianship. He will only recommend guardianship if it is the least restrictive way of solving the ward’s problems. A guardianship application may be abandoned if the investigation report fails to recommend guardianship.
The Attorney Ad Litem
If the guardianship application is not abandoned, the court will appoint an attorney ad litem for the ward. The attorney ad litem will read the investigation report and, if necessary, perform further investigations and interview the ward. The attorney ad litem is not neutral – his job is to represent the interests of the ward.
The court will then set a date for a hearing. All interested parties must be notified: the proposed guardian, the ward, the attorney ad litem, and anyone else with a legitimate interest in the case. The ward must attend the hearing unless the judge determines that it is not in his best interests to do so (due to illness, for example).
The ward or attorney ad litem may demand a jury trial. The ward, the attorney ad litem, and anyone without an “adverse interest” is entitled to contest the guardianship. An adverse interest may be found if, for example, the person contesting the guardianship has a claim against the ward’s property.
Court Findings and Decision
To approve a guardianship application, the court must find that:
- It is the appropriate court to make the guardianship determination.
- The ward is partially or totally incapacitated. The guardian’s authority may be limited to the extent that the ward is able to care for himself.
- The proposed guardian is qualified under Texas law.
- The guardianship is in the ward’s best interests.
- The guardianship will protect the ward’s rights (including his property rights).
If the court approves the guardianship application, it will issue a court order establishing the guardianship. The court order will establish the limitations of the guardian’s authority in compliance with the principle that that the ward’s freedom should be imposed upon in the least restrictive way possible.
The Oath and Bond
The guardian must sign the Oath of Office and may also be required to deposit a bond with the court. If the guardian has financial authority over the ward, the amount of the bond is typically substantial. Any amount that the ward ends up losing due to guardian fraud or mismanagement will come out of this deposit.
The Guardianship Certificate
Once the guardian takes the oath and pays the bond, the county clerk will issue a guardianship certificate that represents the guardian’s authorization document (a bank or a doctor may want to see it, for example). The certificate expires after 16 months and must be renewed if the guardianship is to continue.
The Guardian’s Continuing Obligations
After his appointment, the guardian must:
- file an annual report with the court.
- file an annual financial accounting with the court if the the guardian has authority over the ward’s financial affairs.
- renew the guardianship certificate when it expires. Renewal can only occur if the court approves the annual report and the financial accounting.
- pay an increased bond amount if so required by the court.
Let Romano & Sumner Guide You through the Complex Guardianship Process
If you are considering initiating the guardianship process, and if you live in the Sugar Land, Texas, area (including Mayfield Park, Ragus Lake Estates, First Colony, Sugar Lakes, or elsewhere in Fort Bend County), contact Romano & Sumner immediately to schedule a free initial consultation. We can be reached by phone at (281) 242-0995 or though our online contact form.