Guardianship is a term with a legal meaning that lines up with the regular usage of the word. A guardianship means that a person termed the guardian is named to look after someone who needs assistance.
In Texas, a guardian can be appointed by the court for adults or for children vulnerable to abuse, neglect (including self-neglect) and exploitation. Temporary voluntary guardianship for a minor child offers similar protections for kids, but does not require a trip to court.
Guardianship in Texas
The term "guardianship" refers to the appointment of an adult to assist someone who cannot care for themselves, termed the ward. This can be a vulnerable adult or a minor in Texas, and the agreement of the ward is not required.
In general, establishing a guardianship in Texas requires an appearance in court. This legal procedure is intended to protect vulnerable persons from harm, whether that harm is threatened by others or results from neglect.
A Texas guardianship can provide for personal care for the individual, termed a "ward," and/or assistance in the managing of their financial affairs. The process works to preserve as much as possible of the individual's independence and autonomy.
Situations Requiring a Guardian
There are a variety of circumstances in which these guardianships can be useful or necessary. If adults are unable to care for themselves because of illness, injury or other disability, guardianship may be the best option.
But it is not a step that courts take lightly since it removes certain rights from the ward, even if they are adults. Note that an involuntary guardianship of a minor is different than a temporary voluntary guardianship.
"Incapacitated" in Texas Guardianships
The guardianship statute in Texas defines an incapacitated adult as a person who cannot take care of themselves due to a physical or mental condition. This can be an inability to:
- Provide food, clothing or shelter for themselves.
- Care for their own physical health.
- Manage their own financial affairs.
However, none of these conditions is enough, in and of itself, to classify a person as legally incapacitated. That status requires a court determination. If someone files a guardianship application, the person for whom it has been filed is termed an “alleged incapacitated person” or a “proposed" ward.
When a court appoints a guardian, it can give them either broad or limited authority, depending on the physical or mental limitations of the incapacitated person.
Types of Guardianships in Texas
Judicial guardianship applications filed in Texas courts can seek guardianship of the person or of the estate. Each type of guardianship protects the vulnerable person in a different way. The court ruling to establish a guardianship can appoint a guardian of the person to take care of the physical well-being of a ward.
It also can appoint a guardian of the estate to care for a ward’s assets and property. Many times, the same person is appointed to care for both.
Guardianship of an Incapacitated Ward
An incapacitated ward who is the subject of one or both types of guardianships in Texas can be either an adult or a minor. This is very different than the Texas voluntary temporary guardianship of a minor, which is usually set up at the request and for the convenience of the parents a child.
Texas Kincare Project
There is some overlap in the Texas Kincare Project that allows close family members to gain temporary or permanent guardianship in any cases that do not involve parental neglect or child protective services.
Under the Texas Kincare Project, relatives, like grandparents, or aunts and uncles, can assume responsibility for caring for children when parents are unable to fulfill their parental duties.
The program helps low-income non-parent caregivers with assistance for medical and legal aid while being a guardian. It helps the family member who is the caregiver with state funding programs including welfare and food stamps for the children.
Procedure for Applying for a Guardianship in Texas
Anyone interesting in setting up a Texas guardianship, whether a family member or other interested party, must file an Application for Appointment of Permanent Guardian. The application seeks information about the proposed ward, the proposed guardian and the proposed guardianship. It includes:
- Name, sex, date of birth and address of the proposed ward.
- Name, relationship and address of the person the applicant wants to have appointed as guardian.
- Whether guardianship of the person or estate, or both, is sought.
- Nature and degree of alleged incapacity; specific areas of protection and assistance requested; and limitations of rights requested to be included in the court’s order of appointment.
- Facts requiring that a guardian be appointed and why applicant is interested in the appointment.
- Nature and description of any kind of guardianship existing for the proposed ward in Texas or in any other state.
- Name and address of any person or institution having the care and custody of the proposed ward.
- Approximate value and description of the proposed ward’s estate, including any compensation, pension, insurance or allowance to which the proposed ward may be entitled.
- Requested term (one year or continuing) of the guardianship, if known.
- Name and address of any person holding a power of attorney, if known, and a description of the type of power of attorney.
This application must be filed in the county court in the state of Texas where the proposed ward lives. Along with the application, the applicant must provide documentation of the incapacity of the proposed ward.
That documentation must take the form of a report from a physician licensed in Texas who has conducted a thorough examination of the proposed ward within the past four months.
Psychologist Report Required for Special Needs
Alternatively, where the proposed ward’s alleged incapacity is a result of mental retardation, the evidence must be provided from a psychologist certified by the Texas Department of Mental Health and Mental Retardation who has conducted an examination of the ward within six months prior to the hearing date.
In some cases, reports are sufficient medical evidence. In other cases, the court can ask the physician or psychologist to testify about the nature and degree of incapacity of the proposed ward.
After the Application Is Filed
Once the application and medical evidence is filed, the court clerk issues a citation. This must be handed in person to the proposed ward.
When the application is filed as part of an action in Statutory Probate Court, the court appoints a court investigator who reviews the evidence and meets with all concerned individuals to be sure the guardianship case is handled in the least restrictive manner possible.
The court investigator's report is filed with the court and provided to the attorneys. If the court investigator finds the evidence unpersuasive, they may recommend that the application be withdrawn. If not, an attorney ad litem is appointed to represent the interests of the alleged incapacitated individual. The attorney ad litem reviews all evidence and meets with the proposed ward.
The Court Hearing Date
A court hearing is set, and every interested person is given notice, including the alleged incapacitated individual. Generally, the proposed ward must be at the hearing and can seek a jury trial.
Anyone can contest the guardianship, including the alleged incapacitated person and their family members. At the hearing, the court hears evidence of the facts and the capacity of the alleged incapacitated adult to take care of themselves and their property interests. The court then makes a determination.
Temporary Guardianship of a Minor in Texas
Voluntary temporary guardianship under Texas law has some similarities to regular guardianships in the state, but is used in entirely different situations, and no court action is required. Parents can opt to place their children in the care of another adult for a limited time under a Texas temporary guardianship order.
This can be arranged for the parent's convenience. For example, parents who need to travel away from home for work can arrange a temporary voluntary guardianship for child care.
But there are many other possible situations where this temporary guardianship can be used in Texas. For example, if the parent caretaker has a medical procedure or a medical treatment and is in the hospital, or if they require extended health care for any serious illness or medical condition.
Procedure for Obtaining Temporary Guardianship
In Texas, a temporary guardianship is set up by completing the Authorization Agreement for Nonparent Relative or Voluntary Caregiver. Find guardianship forms at the Texas Department of Family and Protective Services website.
Generally this is completed by the child’s parents, and court approval is not required. But this can be filed by the proposed guardian as long as the parents are in agreement.
A signing parent can define a period of time for the legal guardianship, but doesn't need to – the authorization is revocable at any time. For example, a single parent away on military duty can revoke the guardianship upon an early return. Many signing parents don't enter exact dates or time frames on the form. There is also the option to extend guardianship upon death of the parent.
Filing the Form in Court
The parent who authorizes the temporary guardianship must sign the form. In cases where both parents are unable to maintain parental duties, both must sign the form. The family member or caregiver assuming guardianship also signs the form.
Generally, the parents remain responsible for paying support of the child. However, temporary guardians may be responsible for certain expenses. Given the legal and financial implications, the parent and the guardian must take the time to fully understand how the agreement impacts them before signing. All signatures must be notarized.
When Parents Are Divorced
Where parents are divorced, a custodial, signing parent must mail a copy of the voluntary agreement to the noncustodial, non-signing parent. In most cases, it is not necessary to file the form with the court.
However, where custody or child support orders exist, courts review the temporary guardianship to make sure it is consistent with existing court orders. Where this is the case, the judge will make any other rulings that are in the best interests of the child and confirm that the parties are in agreement.
Return of Child to Parents
The moment that the parent's situation resolves and they are ready to assume care of the child again, the guardian must return the child. They must do this immediately or face criminal sanctions.
Since this is a voluntary assignment, a guardian does not have authority to contest the parent’s ability to care for the child. In fact, the guardian would need to prove incompetence or criminal negligence to prevent a parent from restoring parental rights.
- Texas Guardian Association: What Is Guardianship?
- The Law Dictionary: How to Give Temporary Guardianship of Your Child
- Texas Law Help: Temporary Authorization for Care of Minor Child (Texas Family Code 35)
- Texas Statutes: CHAPTER 35 Temporary Authorization for Care of Minor Child
- Texas Law Help: Going to Court to Get Temporary Authorization to Care for a Child
- Texas.gov: Guardianship
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.