Guardianship is an extreme remedy and generally considered a last resort in Texas, as well as other states. The appointment of a guardian creates a legal relationship between the person appointed and their ward, usually an adult who is unable to take care of themselves. Before anyone applies to be appointed as someone's permanent guardian, they should get a solid understanding of state rules about guardianships, the different types of guardianships, and how the process works in Texas.
Adult Guardianship Cases
While the term "guardian" may bring to mind a loving caretaker of children, the facts are quite different in Texas. Guardianship describes a court-ordered arrangement where a competent adult is appointed to make decisions for another adult who has been determined to be incapacitated. The court essentially takes away the right to make certain decisions from the incapacitated adult, termed the ward, and gives that right to the guardian.
Minor Guardianship Cases
While occasionally a guardian is appointed for children, this is quite rare. Generally, the individual that has legal custody of a minor children has the right to make all life decisions on their behalf. In Texas that is termed conservatorship, rather than custody, but like custody, it is usually awarded to one or both of the parents. In rare cases when neither parent is capable or willing to serve as conservator, a nonparent is awarded conservatorship of minor children in Texas.
Types of Texas Guardianship
There are four types of guardianship in Texas, as described in the Texas Estate Codes. They are: guardianship of the person; guardianship of the estate; guardianship of the person and of the estate; and temporary guardianship. Each of these types of guardianship confers certain authority on the person appointed guardian, and all are permanent rather than temporary.
When a person applies for permanent guardianship in Texas, they must specify which type of guardianship they are seeking. Note that temporary guardianship applies only when the court determines that one of the permanent guardianships is required but cannot be set up quickly enough to meet the needs of the ward. In that case, a temporary guardian may be appointed until the permanent guardianship is established.
Guardianship of Person
In Texas, guardianship of the person limits the authority given to the guardian to making personal decisions for the ward. The guardian is charged with making those decisions on behalf of the ward about their personal life, including where the ward should live; whether they should be placed in a home; what type of health care or medical treatment they will get and where they will get it; whether they can travel; and whether they can marry or divorce.
When a person is appointed full guardian of the person, their rights are usually similar to the rights that parents have over their minor children. However, the court can impose limits if it determines that it is in the interests of the ward. This is termed "limited guardianship of the person." For instance, it may give the ward the right to decide whether to marry or divorce, or to vote.
Guardianship of Estate
Guardianship of estate in Texas involves a different set of decisions that a guardian is authorized to make on behalf of the ward: primarily financial decisions. A person appointed guardian of estate manages the ward's financial affairs. They pay the ward's bills from their bank accounts; invest their money; apply for government benefits on their behalf, such as Medicaid; and sign contracts on their behalf. A guardian of estate can also buy or sell the ward's property and file or defend lawsuits for the ward.
As is the case with guardianship of person in Texas, a court may appoint someone to a limited guardianship of estate. That functions similarly to a limited guardianship of the person, in that the court permits the ward to make specified financial decisions on their own, like whether or not to sell real estate. The guardian has the authority to make all other financial decisions, and the courts supervise guardians of estate quite closely as this type of financial authority is easy to abuse.
Guardianship of Person and Estate
If a person is deemed unable to care for themselves personally and unable to manage their finances, the court may appoint a guardian to fill both categories. This is termed a guardianship of person and estate. The guardian in this case has extraordinary powers over the ward, to control their personal life as well as their finances. The court may opt to limit the guardian's authority, however.
Application for Permanent Guardianship
In Texas, guardianship petition applications are heard in probate court. If a county is so small that it does not have a separate probate court, guardianship applications are heard in the county court. Forms for applying for a guardianship should be obtained from the probate or county court in the county where the proposed ward resides. Each county may have different guardianship forms and different procedures for applying.
Anyone wishing to apply should communicate with the court to determine the appropriate forms. Otherwise, priority is given to family members as long as they do not fall into any of the categories of persons deemed ineligible. Persons ineligible for guardianship appointments include:
- Anyone under the age of 18.
- An incapacitated adult.
- Anyone who owes the ward money or who is involved in a legal, contractual or property dispute with the ward.
- Criminals, particularly those convicted of felonies, embezzlement, elder abuse or sexual offenses.
- Anyone who has a conflict of interest with the ward.
Texas courts have broad discretion in accepting or rejecting guardianship applications. If the ward made their preference for a guardian known before they became incompetent, the court gives this a lot of weight.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. 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 M.A. and an M.F.A in creative 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.