How to Declare Someone Incompetent to Manage Affairs in Texas

In an ideal world, guardianship would be viewed as simply matching someone who needs help with someone who can provide that help. But this legal procedure is somewhat more complicated in Texas because the court appoints a guardian for an adult only if the person's competency is in question. The person must first be declared incompetent to manage their own affairs.

Once this preliminary finding is made, a Texas court can appoint an individual, called a guardian, to care for the incapacitated person or to manage their affairs. The guardian becomes the decision-maker for those with lack of capacity. These legal proceedings are called guardianship petitions.

The term "guardianship" is used a bit differently in every state, and the differences can be critical toward understanding both the role of the guardian and the process of being appointed one.

While the difference between conservators and guardians is subtle in most states, the line is more readily drawn in the state of Texas, where a conservatorship almost always involves minor children during a divorce, while guardianships are largely for the benefit of incapacitated adults.

In many, if not most, states, the court's job of determining which parent will have primary responsibility for the minor children is called granting custody. There can be sole custody if one parent is awarded sole or primary responsibility, or joint custody if both are given primary roles. However, in Texas, "custody" is not the term used.

Rather, parental responsibility for minor children after divorce is called conservatorship. A parent who is given a conservatorship in Texas would be said to have been granted child custody in other states.

Another difference is that other states may call this a "parenting plan," but, in Texas, divorce courts establish the "conservatorship arrangement." Similar to parenting plans, conservatorship arrangements in Texas are court matters to be reviewed and approved by the divorce court before they are incorporated into final divorce decrees.

Generally, the plans designate one parent as the primary joint managing conservator, and the other parent as the possessory conservator.

A Texas conservatorship is set up by the divorce court. A Texas guardianship, however, is a matter for the probate court and involves the appointment of a guardian for a ward, the incapacitated adult. While conservatorship is described in the Texas Family Code, the guardianship procedure is found in the Texas Estates Code.

This is usually a formal appointment process in Texas probate court, but since the smaller Texas counties do not have probate courts, guardianship there is handled in the county court or County Court at Law.

A guardianship in Texas is created by the court when it appoints a competent adult to be the guardian of an incapacitated or incompetent adult, or ward. The ward must be declared legally unable to make their own decisions. The right to manage their life is removed from the ward by the court and bestowed on the guardian.

Who is classified as an incompetent adult? An adult is considered incapacitated under Texas law when the person, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for themselves, care for their own physical health, or manage their own financial affairs.

Under Chapter 13 of the Texas Probate Code, guardians can be given the legal authority to manage an incapacitated adult's estate and financial activities, make their medical decisions for them, and arrange appropriate care.

Often family members are selected, but where there are no suitable relatives to be guardians for an incapacitated person, the court can appoint a Texas social welfare agency as guardian.

The court essentially takes from the incapacitated adult, or ward, the right to make certain decisions and gives that right to the guardian. But what rights? That depends on the type of guardianship established.

The Texas Estate Code describes four types of guardianship in the state:

• Guardianship of the person.
  
• Guardianship of the estate.
  
• Guardianship of the person and of the estate.
  
• Temporary guardianship.
  

Each type of guardianship is different, based on different incapacities of the ward. Each type confers certain authority on the person appointed guardian. When a person applies for permanent guardianship in Texas, they must specify which type of guardianship they are seeking.

What is a temporary guardianship? Normally, all guardianships are permanent. But sometimes a court determines that the ward requires one of the permanent types of guardianship but that cannot be set up quickly enough to meet the individual's needs.

In that case, a temporary guardian may be appointed until the permanent guardianship is established. A temporary guardianship can last a maximum of 60 days.

In Texas, guardianship of the person describes the authority given to the guardian as that of making personal decisions for the ward. The guardian can make all of the critical personal decisions that arise in the person's life, including matters involving:

• Where the ward should live.
  
• Whether the ward should be placed in a home.
  
• What type of health care or medical treatment they will get.
  
• Where they will get medical care.
  
• Whether they can travel.
  
• Whether they can marry or divorce.

When a person is appointed full guardian of the person, their rights look a lot like the rights that parents exercise over their minor children. However, not every guardianship of the person is a full guardianship.

The court can impose limits on the guardianship and impose a "limited guardianship of the person" if it determines that it is in the interests of the ward. Typically, this might involve giving the ward such rights as the right to decide whether to marry or divorce.

Not every guardianship in Texas is of the person. When the ward is determined incompetent to manage their own financial affairs, the court can establish a guardianship of estate. In Texas, this involves a different set of decisions that a guardian is authorized to make on behalf of the ward – largely business or financial decisions.

When a competent individual is appointed guardian of estate for a ward, they become responsible for making decisions about the ward's financial affairs. This includes:

• Paying bills from the ward's bank accounts.
  
• Investing the ward's money for them.
  
• Applying for Medicaid, Social Security, or other government benefits on their behalf.
  
• Signing contracts on their behalf.
  
• Buying or selling property for the ward.
  
• Running the ward's business if one exists.
• Making any and all other financial decisions for the ward.
  

Texas recognizes a limited guardianship of estate. It functions similarly to a limited guardianship of the person in that the court authorizes the ward to continue making specified financial decisions on their own.

For example, the ward might retain the right to determine whether or not to sell their real estate. The guardian is given authority to make all other financial decisions not specifically reserved to the ward.

Courts supervise guardians of estate quite closely because this type of financial authority is easy to abuse. Where there are sufficient assets, family members might want to get legal advice before the incompetency hearing. The appointment of a guardian of estate for an adult frequently names the loved ones or adult children of the incapacitated person to this easily abused role.

These two roles are often combined. When a court finds that a person is both unable to care for themselves personally and also unable to manage their own finances, it may appoint a guardian to fill both categories. This is termed a guardianship of person and estate.

This type of legal guardian has extraordinary powers over the ward, to control their personal life as well as their finances. Court supervision is required to be certain that there is no abuse by the caregiver.

In Texas, anyone believing that another adult is not competent to manage their own life or financial affairs can consider filing a guardianship petition application. These are generally filed and heard in probate court.

Application forms are available from probate court, superior court or county court in the county where the proposed ward resides. Each county may have different guardianship forms and different procedures for applying, so it is important to obtain the correct forms.

Priority is given to loved ones and family members who wish to be named guardian as long as they do not fall into any of the categories of persons deemed ineligible. Ineligible persons 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 as part of their estate plan, the court gives this considerable weight.

Note that Texas procedures for proving a person incompetent and getting a guardianship are extremely complex. Seeking experienced legal advice can be critical. Many courts only accept applications filed by attorneys.

One preliminary step – proving that the person is incapable – can be difficult, since the court will only make this ruling if the person proves incapacity by clear and convincing evidence, including a certificate from a doctor who completed an evaluation of the person.

Texas requirements in this regard are detailed. For example, the doctor must conduct the exam and file the report within 120 days of the date the application for guardianship is filed.

Alternatively, where the proposed ward’s alleged incapacity is a result of mental health or dementia, the evidence of incompetence 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.

Once the application and medical evidence is filed, the clerk issues a citation that must be personally served on the proposed ward. The court can appoint an investigator to review the evidence and confer with all concerned individuals.

If the investigator finds the evidence is persuasive, an attorney ad litem is appointed to represent the interests of the alleged incapacitated individual.

At this point, a court hearing is scheduled, and notice is given to the alleged incapacitated individual and their family members. The proposed ward appears at the hearing and can request a jury trial.