Guardianships

The Texas Guardianship Association defines the term Guardianship as “a legal process designed to protect vulnerable persons from abuse, neglect, and exploitation.”

Because of the increasing population in the United States of people living much longer lives, the number of “vulnerable” or incapacitated persons, and therefore the need for guardianship attorneys, lawyers and or law firms has exploded in the last two decades. Texas, like many other states, has been required to address this growing need and has developed an entire body of law for guardianships.

In order to better understand the basics of a guardianship, it is important to understand a few key terms. They are as follows:

  1. Ward. Also known as “incapacitated person,” the Ward is an elderly adult who is not capable of making decisions for themselves and has, as a result, been placed under guardianship. This term also applies to minor children who need someone to make financial decisions for them and/or who may have lost both parents and need someone to make personal welfare decisions for them also.
  2. Guardian. The person(s) who has been appointed to make decisions for the Ward. These decisions can be related to the personal welfare and well-being of the Ward, the finances of the Ward, or both.
  3. Probate Court. The Court that has jurisdiction over guardianship cases. Although some counties in Texas do not have official probate courts, all guardianships are handled in the courts in which probate matters are heard.

In order to initiate a guardianship proceeding in Texas for an incapacitated adult, the Probate Court requires that a letter from a doctor be provided to the Court giving the Court the appropriate information to demonstrate that the individual is, in fact, incapacitated. A copy of the standard Doctor’s Form Letter typically used for these purposes is provided for your reference.

Because the entire topic of guardianships is so complex, we have attempted to include fairly in-depth information in this Guardianship Information Center for your education. Following are the topics covered in the pages of our website:

  1. Guardian of the Person. The Guardian of the Person is someone appointed to make personal, medical, and welfare decisions for a Ward. This section gives you insight into the responsibilities of the Guardian.
  2. Guardian of the Estate. The Guardian of the Estate is appointed to make the financial decisions related to a Ward’s assets. This person is charged with preserving, protecting, and maintaining the assets. Included in this section is a discussion of the Bond Issues encountered by guardians of the estate, the Accounting Issues that prevail in these guardianships, and the requirements for Court Approval of Guardianship Expenses, which are strictly enforced in the Probate Courts.
  3. The Guardianship Process (From A to Z). This section of the website gives you a step-by-step outline of the guardianship process for those who consider applying to become guardian of a friend or family member.
  4. The Role of the Ad Litem Attorney. Every time that a guardianship is filed, it is the responsibility of the Probate Court to appoint an Attorney ad Litem to represent the legal interests of the Proposed Ward.
  5. Guardians of Minors vs. Incapacitated Adults. Both minors and incapacitated adults can need a guardian in various situations. This section details the differences and when a guardian might be necessary for either group.
  6. Alternatives to Guardianships. In certain cases, alternatives other than a formal guardianship might be available for the Ward’s benefit. These alternatives might include Powers of Attorney, Management Trusts created by the Probate Court, etc. These alternatives are discussed in this section.
  7. Texas Guardianship Certification Board. The Texas Legislature recently created the Guardianship Certification Board, which is charged with the task of creating and enforcing rules and standards related to the certification of private, professional guardians across Texas. These Rules and Standards signify a major shift in the guardianship arena. A discussion of the Guardianship Certification Board and its implications is included in this section.

Ford+Bergner LLP has set out to provide comprehensive services to our clients in guardianship cases. We recognize that Guardians many times serve out of a love for their Ward, but at the same time, the Guardian often does not have the time or energy to fully understand the requirements of the Guardianship. To the greatest extent possible, Ford+Bergner stands ready to assist our clients in any way possible in the guardianship process.

Whether you are seeking to obtain guardianship of a friend or family member, or you find yourself in the unfortunate situation of having to contest some aspect of an existing guardianship matter, we will be glad to assist you in those matters. Please Contact Us so that we can discuss these matters with you in more detail.

Guardianship Information Center

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By Don Ford