A guardian is a person who is appointed by the Court to make personal or financial decisions for someone else. The person that the guardian is appointed to make decisions for is called the “ward.” Typically, wards are children or incapacitated adults.
The Court appoints a guardian when it determines that a person cannot handle their personal or financial affairs. This determination may be made after an application is filed by an individual asking for guardianship of another person or when a judge realizes that someone needs help on their own.
Who Qualifies as a Guardian?
A guardian is an individual appointed by a court to make decisions for an incapacitated person. There are basically two types of guardians in Texas- a guardian of the person and a guardian of the estate. A guardian of the person makes personal care decisions for the incapacitated person and is responsible for their physical well-being, medical care, and emotional well-being. This can include having proper housing, food, clothing, medical care, recreation activities, and religious services. If you are appointed as someone’s guardian, you will be given the legal right to make these decisions on their behalf, but you will also be held legally responsible for those decisions.
A guardian of the estate makes financial or property management decisions on behalf of an incapacitated person. The guardian handles all finances that belong to someone else, including collecting their income (wages), paying their bills (mortgage or rent), depositing money into bank accounts (checking or savings), paying taxes owed by that person, etc. They can also sell real estate owned by someone else with approval from the probate court.
Texas Guardianships can last indefinitely, or it can be temporary depending on what type is granted by the probate court judge in your specific case
How do you become a guardian?
Qualifying and becoming a guardian is rarely an easy process. You must petition the Court to be considered, which involves showing that you meet the legal criteria for guardianship. The court rules vary from state to state, but some general requirements are to be aware of.
In order to take guardianship, you must have an attorney who represents your interests in court and makes sure all the paperwork is in order before your hearing date. When it comes time to go before a judge, this lawyer will prove that you have met all the necessary criteria for guardianship.
This can be anything from a criminal background check or a psychological evaluation, depending on what Texas courts require at any given time. If you pass their screening process and they decide that they believe you will act as a good guardian, they will send notice that your ward’s estate has been opened up. And they’ll allow you to begin making decisions on their behalf with the stipulation that you do so in their best interest and continue abiding by court rules.
Requirements for Becoming a Guardian
To become someone’s guardian in Texas, you must petition the Court. If you are seeking guardianship over an adult, that person’s family members will be given preference over other individuals in most cases. However, it may be possible to be considered a “preferred” guardian. This means you would get preference over family members in case of the following;
- You are related to the proposed ward by marriage;
- You were named as an agent in a power of attorney executed by the proposed ward;
- You reside with and provide care for the proposed ward regularly; or
- It would not be in the proposed ward’s best interest for their relatives to serve as their legal guardians.
What are the rights of guardians?
Once you are appointed as a guardian, you will have the right to act for your ward as if you were the parent. The particular rights may be expanded or limited by court order. For example, suppose your ward has been in a car accident and is incapacitated but has no funds of their own with which to pay medical bills. In that case, the Court may issue an order to allow you access to the ward’s parents’ insurance policy. In such a case, your rights would be expanded to include permission to access information about and make decisions concerning health care.
The following are some of the rights of guardianship:
- The guardian has the right to have reasonable access to their ward and relevant information concerning their condition
- The guardian has the right to make decisions regarding residential placement and appropriate care for their ward
- The guardian can consent to their ward’s medical treatment; however, this does not necessarily mean that they have power over life-sustaining treatment.
Factors that Lead to a Termination of Guardianship in Texas
- Violating the law
Whenever a guardian violates the law in Texas or does not perform his duties, the guardianship can be canceled. The violation of law may be in any form and can be anything from physical abuse to financial abuse. When the guardianship is canceled, legal rights are given back to the individual under guardianship in the first place.
- If the ward’s physical or mental health improves
In Texas, guardianship may be canceled at any time if the ward’s physical or mental health has improved to the point that they no longer need assistance. If this is the case, the guardian should request a hearing before a judge by filing a request in writing with the Court. A doctor’s letter showing proof of improvement may also be required.
- Once the minor turns 18 years of age
In the case where a guardian is appointed for a minor child, and that child turns 18 years old before the guardianship ends, the juvenile Court will cancel the guardianship automatically on that minor’s 18th birthday. Unless the Court otherwise orders it.
What to Do If You Want to Terminate Guardianship
If you want to terminate the guardianship, you must file a petition for termination of guardianship. You must serve all parties with notice of your hearing. If you are the guardian and you want to quit, you must also give notice in writing to all interested parties, and the Court must approve it. You must also have a new guardian appointed before terminating your appointment as guardian.