Guardianship is a legal arrangement between a caregiver – the guardian – and a ward. The ward might be a minor or an incapacitated individual who’s unable to care for himself or to manage his own finances and affairs. Texas law requires that incapacitated adults must have guardians if they receive any money or income from a government source. Texas recognizes two types of guardians: guardians of the person and guardians of the person's estate.
A guardian of the person provides care and makes decisions regarding the ward's housing, education and health needs. A guardian of the person’s estate oversees the ward's finances. One guardian can serve in both roles, or different individuals can serve in each role. The powers of a guardian can be full or limited.
Terms of Appointment
Guardians are appointed by a Texas court when a petition for guardianship has been approved and granted. The guardian has 20 days from the date the petition is approved to post a bond with the court, insuring the ward’s estate against mismanagement. The guardian must also provide a written statement to the court, made under oath, swearing to perform all legally required duties. The court will then issue letters of guardianship, authorizing the guardian to legally act on the ward’s behalf.
Guardianships are not necessarily forever in Texas – they can end for any number of reasons, and their terms can be modified when necessary. But this often requires a court appearance to establish that the circumstances that prompted an adult guardianship have changed.
Termination Due to an Event
Texas guardianships can terminate when certain events occur:
- The ward dies and was unmarried.
- The ward regains full capacity or sufficient capacity to care for herself and manage her own affairs, and is not receiving funds from any government source.
- The ward was a minor and reaches the age of majority, which is 18 in Texas.
Temporary guardianship can be granted while a court decides whether to appoint a permanent guardian, and permanent guardians must effectively renew their letters of guardianship in 16 months by filing an annual accounting with the court stating what they’ve done on behalf of the ward and how the ward is faring. They must also post a new bond. Otherwise, their letters authorizing guardianship will expire.
And, of course, the court can terminate a guardianship due to wrongdoing.
Termination by Court Order
All events, other than the death of the ward, require a court order officially terminating the guardianship after a hearing where the facts and circumstances are presented to a judge. The court will restore a ward’s personal right to care for himself if the issues that led to the guardianship have been resolved. This legally ends the guardianship. The terms of the guardianship can also be modified or changed if circumstances require it.
Termination of Guardianship of Minors
The court will also terminate guardianship of a minor ward when and if the parent or parents have rehabilitated from some circumstance that caused them to be “incapacitated parents,” requiring that guardianship of the child be awarded to someone else. The parent is reappointed as guardian when this occurs and resumes all parental rights.
When Guardianship Is No Longer Necessary
Ending a guardianship because the ward is no longer incapacitated requires filing a petition with the court, asking a judge to terminate the legal arrangement. Either the guardian or another interested party can do this. The judge has to find, after presentation of evidence at a hearing, that the ward is not currently incapacitated. A guardian ad litem or GAL – someone appointed by the court to represent the ward’s interests – will be assigned to look after the best interests of the ward during the proceedings.
The judge might also find that a ward can resume some, but not all, of her own self-care needs and/or the care of her estate. Outside support might be provided to the ward in this case to assist with tasks that might still be challenging, or the powers of guardianship might become more limited. The guardianship would remain in place, however.
Requirements for the Petition
The petition to terminate or modify guardianship should provide all identifying information regarding the ward and the guardian, and it should clearly state whether the petitioner wants the court to end the guardianship entirely by restoring the ward’s personal rights or to limit the guardian’s powers.
Guardians of the estate must include a financial statement of the ward’s holdings and income, and the names and addresses of any next of kin must be provided if the ward is age 60 or older. A physician’s statement attesting to the ward’s recovery might also be necessary.
Termination by Request of the Ward
A ward can ask the court to terminate or modify the guardianship, and in this case need only present a letter to the court, not a full-fledged legal petition. The court will appoint a GAL or other court investigator to look into the matter, and this action doesn’t first necessitate a statement by a physician as to the ward’s rehabilitation. Interfering with the delivery of the letter to the court is considered a criminal offense.
The court must acknowledge the letter in writing, and the acknowledgement must be delivered by certified mail within 30 days of receiving the ward’s written request. It must tell the ward the date on which an investigator or guardian ad litem was appointed and it must include contact information for that individual.
The investigator or guardian ad litem will submit a report to the court with his findings, and the ward is entitled to a copy. This investigator or GAL would then be responsible for filing a petition with the court to terminate the guardianship on behalf of the ward if this has been recommended, although a ward has the right to file the petition on his own. Court proceedings might next be required, but the court can decide to terminate the guardianship on the merits of the investigator’s or GAL’s report. A physician’s statement would most likely be required at this point.
Preponderance of Evidence vs. Clear and Convincing Evidence
The burden of proof for ending guardianship is much less than it is for creating the guardianship in the first place. The petitioning party need only establish by a preponderance of evidence that the guardianship should be terminated. This means that the majority of the evidence leads to the logical conclusion that the guardianship should end. This is a less exacting legal requirement than the clear and convincing evidence that’s required initially to place a guardian in charge of a ward’s person and/or estate.
Appointment of Successor Guardians
Texas courts will sometimes exercise a third option when the necessity for guardianship is disputed but isn’t unequivocally indicated, such as because the ward has reached adulthood or the guardian has died. A successor guardian can be appointed to replace and take over for the initial guardian. This automatically terminates the initial guardianship.
The court isn’t required to appoint a successor guardian, however, in cases when the first guardian dies, resigns or has been removed while a petition for terminating the guardianship is pending.
Read More: How Do I Become a Court-Appointed Guardian?
The Bottom Line
Terminating a legal guardianship can be a complex proceeding with a lot of interlocking rules, so the assistance and guidance of an attorney might be necessary. Legal aid services handle guardianship matters in some areas, but low-income requirements usually apply.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.