“Legal Guardianship is a complex procedure and process without legal counsel. Don’t do it alone, consult with the experienced and knowledgeable guardianship attorneys at Romano & Sumner to help you navigate.”
Guardianship Attorneys Assisting Families with Complex Matters throughout Eastern Texas including Sugar Land, Houston and the Surrounding Areas
Texas guardianship law is designed to ensure the well-being of someone who is unable to care for himself or manage his own financial affairs. This person might be a terminally ill elderly patient, someone with Alzheimer’s Disease, a minor, a mentally incapacitated adult, or anyone else who is not competent to manage their own affairs. The job of a guardian is to look after the affairs of this person.
Legal guardians are granted certain legal rights to act on behalf of the ward they are protecting. Depending on the type of guardianship and the rights granted by the court, a guardian may have the right to:
- dispose of the assets of the ward,
- make other critical financial decisions,
- decide on which medical treatment to select from among several options, or
- provide for the ward’s basic needs.
Obtaining Legal Guardianship
In Texas, a guardianship is established by the court, which also determines exactly which rights are held by the guardian. Not everyone is qualified to serve as a guardian, and even those who meet the formal legal requirements of guardianship sometimes find their guardianship applications contested by family members or other interested parties.
We Can Help
Guardianship is a daunting responsibility, and the prospect of undertaking it may cause you considerable stress. These difficulties can be rendered even more onerous if you try to handle the complexities and nuances of Texas guardianship law on your own. At Romano & Sumner, we have been guiding clients through the guardianship process for many years now, and we can do the same for you.
A Testimonial from One of Our Clients
“Paul was very patient and always kept me in the know about my case. He was able to explain things clearly and was humble enough to ask me to clarify specific things with my side of the case so he could better understand my position. He would impose his knowledge and expertise but also leave any decision up to me. I felt guided but not pressured. I am confident in him as my attorney.”
— Whitney, September 12, 2014
- Will Contests: Will contests often arise unexpectedly between family members or friends who never expected to find themselves on opposite sides of a legal dispute. Emotions run high, and the law in this area can get quite complex. Even a “no contest” clause in a will cannot guarantee that a probate court will not allow a will contest.
- Estate Litigation: Any asset that is purported to belong to the estate of the deceased can be contested. This includes wills, insurance policies, trusts, and joint tenancies, just to name a few. Estate litigation tends to be emotionally traumatic, because it frequently involves acrimony among family members who are still grieving the loss of their loved one.
- Trust Litigation: Establishing a trust can be a wonderful way for a grantor to provide for his loved ones after death or even during life. Unfortunately, two types of disputes are common – disputes between beneficiaries and the trustee (often alleging trustee misconduct), and disputes among trust beneficiaries.
- Guardianship Litigation: Guardianship disputes can erupt at the time a guardianship application is filed or at some later point. The most acrimonious guardianship disputes typically revolve around allegations that the guardian has been abusing the ward. Other types of guardianship disputes (such as whether the ward is truly incapacitated) are also common.
- Business Litigation: Business litigation often involves tension between a legal solution to the dispute, and an effective business solution. A good business litigation attorney knows how to balance these two competing interests to seek an optimal outcome.
- Estate Planning: Since life is so unpredictable, if you have significant assets it is never too early to create and execute an estate plan. A sound estate plan can involve the use of a last will and testament, a living will, trusts, life insurance policies, power of attorney, and even an advance guardianship designation.
- Estate Taxes: Estate tax could more properly be termed the “death tax” – because it is a tax on the assets of relatively wealthy individuals that is triggered by death. Although Texas does not impose an estate tax, the IRS does. There are methods, however, of reducing your estate tax liability or avoiding it altogether.
- Probate Administration: Probate administration can get fearsomely complex, depending on the size and complexity of the estate being administered, and depending on the existence and effectiveness of any estate plan. When you are grieving the loss of a loved one, these complexities can overwhelm you. In many cases, a Texas probate administration lawyer is a near-necessity.
- Asset Protection: The finances of most people include both assets and liabilities. This combination raises the possibility that your creditors could get hold of your assets without your consent. There are ways, however, of maximizing the protection of your assets from unwanted seizure by creditors. A sound asset protection plan requires advance planning and expertise.
- Business Law: Every aspect of doing business is impacted by the law in some way or another, from selecting an appropriate business vehicle all the way to winding up your business. Failing to effectively manage your legal risks could result in litigation, closure of your business, personal bankruptcy, and even criminal charges.
We practice in other areas of law as well, including tax controversies, gift tax issues and trademark law.
Frequently Asked Questions (FAQs)
Which parties are involved in the guardianship process?
Four parties are required:
- the proposed guardian,
- the proposed ward (the person who will be looked after),
- the attorney ad litem (responsible for representing the best interests of the proposed ward), and
- the court.
What is the procedure for appointment as a guardian?
It generally works like this:
- the proposed guardian submits an application to the Texas Probate Court,
- the court appoints an attorney ad litem,
- the proposed ward is notified of the guardianship application,
- a hearing is held with the proposed guardian and the proposed ward’s attorney ad litem in attendance,
- the guardian takes an oath and pays a bond.
What is an attorney ad litem?
An attorney ad litem is an attorney appointed by the court to represent the proposed ward. Since the proposed ward is either a minor or incapacitated, the attorney typically does not take directives from the proposed ward. He is nevertheless responsible for protecting the proposed ward’s interests.
Who is likely to be appointed guardian of a minor?
Under Texas law:
- parents are granted first priority,
- if neither parent has survived, then the person legally designated by the last surviving parent has second priority,
- third priority goes to next of kin, and
- unappointed non-relatives have fourth priority.
The court can ignore these priorities if a guardianship candidate is found to be unfit.
Who is likely to be appointed guardian of an incapacitated adult?
Under Texas law:
- the proposed ward’s legal designation prior to becoming incapacitated takes first priority,
- the proposed ward’s spouse usually takes second priority,
- next of kin have third priority, and
- unappointed non-relatives have fourth priority.
The court can ignore these priorities when appropriate.
What is the difference between a “guardian of the person” and a “guardian of the estate”?
A guardian of the person makes personal decisions for the ward (e.g., diet, medical care, living arrangements). Whereas, a guardian of the estate makes financial decisions. Courts scrutinize guardianship of the estate applications more closely than guardianship of the person applications.
What is the difference between a temporary guardian and a permanent guardian?
A temporary guardian is generally appointed for 60 days or less due to an emergency situation (a person becomes temporarily incapacitated due to an accident, for example). In a contested guardianship proceeding, a temporary guardian may be appointed until resolution of the contest. A permanent guardian is appointed on a long-term basis – until the ward’s incapacity ends, for example, or until the guardian is replaced by the court.
What is an “incapacitated” person under Texas law?
Under Texas law, an “incapacitated” person is an adult who suffers a physical or mental disability which renders the person unable to provide food, clothing, or shelter for themselves – or unable to manage their own health or finances.
Can I designate my own future guardian in case I ever need one?
Yes. You can appoint a guardian of the person or a guardian of the estate by completing a Designation of Guardian in Advance of Need form and signing it
Nevertheless, a judge can overrule your designation if she finds it inappropriate.
Are You Considering Applying For Guardianship? Let Our Compassionate Attorneys Assist You
At Romano & Sumner, you are not just a case number to us. We are small enough to offer personalized representation, but large enough to possess the resources that sole practitioners lack. Both of our partners have been named Super Lawyers and have received ratings of “Excellent” and “Superb” from the Avvo lawyer rating service.
If you are considering applying for guardianship, or if you have legal concerns about someone else’s guardianship application, contact the Houston guardianship attorneys at Romano & Sumner as soon as possible. During our free initial consultation, we will listen carefully to what you have to say and help you understand your legal options. Contact us online or by calling (281) 242-0995 to get the process started today.
The guardianship attorneys at Romano & Sumner cover all of the aspects in the guardianship process for you and your loved ones.
What does it mean to be "incapacitated"?
Texas Laws have strict guidelines that are followed in order to determine whether or not a person is “incapacitated”. Under Texas law, an adult is considered “incapacitated” if that person, due to a physical or a mental condition, is: (a) substantially unable to provide food, clothing, or shelter for himself or herself; (b) substantially unable to care for his or her own physical health; or (c) is substantially unable to manage his or her own financial matters. Wondering if your loved one would be deemed “incapacitated” by law? Contact the guardianship lawyers at Romano & Sumner for advice.
"Incapacity" of a minor
A “minor,” under Texas law, is defined as a person younger than 18 years old who has never been married. An exception may apply if the court “removed,” by judicial action, the status of that person as a minor. Technically, Texas law considers a minor to be “incapacitated,” absent any such exception. You should consult an experienced guardianship attorney experienced in Texas for further clarification on this complicated issue. Please reach out to Romano & Sumner as your guardianship lawyer in Sugar Land.
Types of Guardianships
There are two types of guardianship in Texas: (1) guardianship of the person and (2) guardianship of the estate. “Of the person” means taking care of the physical well-being of the ward. “Of the estate” means taking care of the ward’s property, assets, and business interests. One or both types of guardian may be appointed. If both are appointed, that person may be the same individual. Typically, this is the case. In other circumstances, there may be an individual person appointed for each type of guardianship. For more information on the type of case you are dealing with, contact our Sugar Land guardianship lawyers.
Evidence Required to Prove "Incapacity"
Incapacity, by definition of Texas law, must be proven. The legal standard is “clear and convincing evidence,” a very high standard to meet. If the ward is not a minor, a doctor must examine the proposed ward and file a certificate with the court based upon that examination. This must be done within very time specific guidelines. Should the court find it necessary to appoint a guardian, Texas law provides a priority list of who should be appointed based upon family relationships. If you need help determining if your loved one needs guardianship or if they show signs of incapacity, contact the guardianship attorneys at Romano & Sumner today for advice.
Contact our offices to discuss what type of guardianship you may be in need of and let us help you work through the legal process.
For legal advice, do not hesitate to contact the experienced guardianship attorneys at Romano & Sumner today. The initial consultation is free, so please call us at 281 242-0995 or contact our Sugar Land law offices.
Romano & Sumner, LLC is proud to serve these Texas areas
Cities / Suburbs:
The Woodlands | Sugar Land | Baytown | Conroe | Katy | Friendswood | Pearland | League City | Richmond | Rosenberg | Spring | Humble | Kingwood | Clear Lake City | Stafford | Jersey Village | Cypress | Missouri City
77478 | 77479 | 77487 | 77496 | 77498 | 77459 | 77489
Harris County, Fort Bend County, and surrounding counties