You may be experiencing a situation where an adult is being abused, neglected, or exploited, or is just unable to care for himself or manage his assets, or is a minor who has inherited property or has need for someone with authority to manage the minor's assets. Among the actions that might be warranted are guardianship proceedings for minor children and adults who are incapacitated. The following is general information about Texas guardianship law, but is not intended to be a substitute for legal advice of an attorney nor to create an attorney client relationship with the reader.
What is a Guardianship?
In Texas, a guardianship is a court proceeding in which a guardian is appointed for an incapacitated person or a minor.
How to apply for Guardianship.
In Tarrant County, Texas, guardianships are heard and administered by the Probate Courts. Any interested person may request the probate court to appoint a guardian for someone the person believes to be incapacitated.
Whar are Letters of Guardianship?
When the court appoints a guardian, the clerk will issue a certificate as proof of the guardian's authority. The certificate is called "letters of guardianship".
For a Guardianship, Definition of "Incapacitated Person"
An incapacitated person is a person who is unable to provide food, clothing, or shelter for himself or herself, who is unable to care for his or her on physical needs, or who is unable to manage his or her own financial affairs because of a mental or physical condition. A minor is also considered to be of legal incapacity.
Different Levels of Incapacity
The doctor treating the person who is incapacitated must specifically set out in a letter to the court the mental or physical basis for the incapacity and the extent of the incapacity. There is a required form specified for the doctor's letter, which contans questions concerning the person's ability to drive, vote, enter into a contract, manage money, and similar matters.
Retention of Certain Rights and Powers When Guardian Appointed
The judge can appoint a guardian but can limit the guardian's powers so that all rights and powers except those granted to the guardian are kept by the incapacitated person.
Types of Guardians
There are guardians of the person and guardians of the estate. A guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. A guardian of the estate has the duty and power to manage the incapacitated person's financial affairs. One person can fill both positions.
Persons Who May Serve as Guardian
The court will appoint a guardian in the following order of priority: (1) the incapacitated person's spouse; (2) the person's next of kin; or (3) any eligible person who is qualified to serve.
Persons Disqualified to Serve as Guardian
The law disqualifies certain persons from being appointed as guardian, including persons with an adverse claim against the incapacitated person or his property or certain conflicts of interest, minors and incapacitated persons, a notoriously bad person, a nonresident without a resident agent, or a person whom the court finds unsuitable.
What is a Temporary Guardianship?
If a court is presented with substantial evidence that a person is a minor or incapacitated and the court has probable cause to believe that the person or his estate, or both, require the immediate appointment of a guardian, the court can conduct an expedited hearing and appoint a temporary guardian with limited powers as the circumstances of the case require. The temporary guardian can serve until a permanent guardian is appointed.
For More Information about Guardianship, Elder Abuse and Alternatives
If there are valid powers of attorney naming a capable agent, a guardianship might be unnecessary. In some cases involving a minor, the client may seek a conservatorship through the family court instead of a guardianship through the probate court or funds payable to minors such as insurance proceeds can be deposited with the probate clerk. We have attorneys experienced in both family and probate courts. Contact Michelle Lowe, Paralegal, 817.820.0825, or info@shellaw.com for a free pamphlet, to make an office appointment with Marilyn Shell, or for a brief telephone consultation with either of them. You may also find useful information in the links below.
Adult Protective Services is the Texas Agency charged with investigating the abuse, neglect and exploitation of an elderly or disabled person and providing protective services to that person. When maltreatment is confirmed, Adult Protective Services provides and arranges for services to alleviate abuse, neglect and exploitation. Short-term services may include emergency shelter, food, medication, heavy cleaning, minor home repairs, restoration of utilities, and mental health assessments. Adult Protective Services in-home staff refer cases that require guardianship services to the Department of Aging and Disability Services. People reported to be abused, neglected or exploited who are: age 65 or older; or age 18 to 65 who have disabilities are eligible for adult protective services.
Links to Guardianship Resources
Guardianship Services, IncThis mission of this volunteer group is to provide guardianship and alternative services to legally and functionally incapacitated individuals who have no family member or friend willing, able, or suitable to serve in that capacity.
Handling Elder Abuse A guide to elder abuse prepared by the Texas Young Lawyer's Association.
National Guardianship Association The mission of NGA is to provide educational training and networking opportunities for guardians and about guardianship; to promote highest levels of values, standards and ethics; and to ensure a nationally recognized standard of excellence.
