In a guardianship case, the court grants an outside individual the legal power to take care of, and make decisions on behalf of, another person. While this often occurs with children who are pulled out of neglectful or abusive households, minors aren’t the only ones who need someone looking out for them. Whether it’s an elderly parent with waning health, or incapacitation through injury or illness, life’s unexpected curve balls can sometimes seriously impact a person’s ability to care for themselves—even as adults.
If this has happened to someone you love, there may be a way you can help by applying to become that person’s guardian. Guardianships in Texas are granted on either a full or limited basis and can be filed on your behalf by your Neal Ashmore attorney. Here’s a little bit about how that process works.
Guardianships in Texas
Texas courts will only grant guardianships when an individual is incapacitated. Under Texas law, this means a person must be:
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- An underage minor;
- An adult who is unable to care for themselves; or,
- An individual who cannot collect funds from a government source without a guardian.
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Of these scenarios, points one and two are the most common types of guardianship cases.
Underage Guardianships
Guardianships involving minors happen when a child’s parents are unable to fulfill their parental responsibilities. Many times, this occurs when a child is orphaned. In other instances, abuse, addiction, or neglect might force the court to take parental authority away from a living parent, and give it to an outside adult.
Stripping a parent of their rights is not something judges do lightly, and typically only occurs when the child is likely to experience further harm if left with biological parents.
Guardianships Aren’t the Same Thing as Adoption
It can sometimes be confusing, but guardianships over minor children are not the same thing as adoption. While both processes grant an outside adult many of the same powers, adoption is much more significant, in that it literally resets the family line. Once an adoption is complete, the law does not distinguish between biological and adopted children. In contrast, guardianships do not alter family lines or inheritance rights.
Guardianship of an Incapacitated Adult
The other common scenario we see at Neal Ashmore, are guardianship cases for incapacitated adults. Old age is the common culprit, but illness and injury can also rob healthy adults of their capacities. When considering whether an adult guardianship is appropriate for your situation, a judge will evaluate whether or not the individual in question is capable of:
- Taking care of their basic needs;
- Addressing and preserving their physical health; and,
- Maintaining finances and affairs without substantial help.
The key phrasing here is “without substantial help.” While what does and doesn’t qualify as “substantial” will ultimately be up to your judge, an elderly relative who occasionally needs help with yard work probably won’t cut it.
Furthermore, having a disability is not the same as being incapacitated. Many individuals with disabilities are perfectly capable of retaining their own legal power, and the court is not going to grant this authority to someone else simply because a disability exists.
If you believe your circumstances meet the necessary requirements, a Neal Ashmore can help you file an application for guardianship that, if granted, would appoint you as a guardian in one of four ways.
Types of Guardianships
When granting guardianships, judges can appoint authority over 1) a person; 2) an estate; 3) a person and an estate (together); or, 4) as a temporary measure.
Guardianships of Person make the guardian responsible for their ward’s physical care. These powers might be granted on a full or limited basis, and aside from basic needs, could also apply to medical and health decisions, as well.
Guardianships of Estate, on the other hand, limit a guardian’s responsibilities to their ward’s assets, only, including finances and real property.
Guardianships of Person and Estate occur when these powers are jointly given to the same person. The court has complete discretion over whether or not to split this authority, and will often do so in order to make it harder for abuse to occur. If you are made a guardian, you may periodically be asked to make an accounting of money used, and decisions made, on your ward’s behalf.
Temporary Guardianships
Sometimes, immediate action is needed. In an emergency or time-sensitive situation, Neal Ashmore can ask the court to grant you a “temporary,” or “emergency” guardianship, while more permanent arrangements can be made. Temporary guardianships require a hearing within ten days after filing, though—aside from limited exceptions—they are only enforceable for sixty days.
If you have a situation that needs to be addressed quickly, contact your family law attorney, to see if a temporary guardianship can work for you.
How to Apply for Guardianships
To start the guardianship process, state law requires all potential guardians to complete a training course, and register with the Judicial Branch Certification Commission (JBCC). You will also be fingerprinted, and undergo a mandatory background check.
Once these preliminary steps are complete, your Neal Ashmore attorney will help you file a guardianship application. If the proposed ward is an incapacitated adult, you should be prepared to include verification documents from the individual’s doctor.
After receiving your completed paperwork, the court will schedule a guardianship hearing, where the interests of your proposed ward will be represented by an attorney ad litem. If there are no objections from this attorney, the judge will verify your arrangement, which, in addition to an oath of guardianship, will require you to post a bond payment.
Financial Deterrent
The bond payment is one aspect of the guardianship process that can take sometimes take people by surprise. This monetary investment is required of all guardians, and is meant to encourage you to faithfully uphold your duties. It basically forces guardians to put some skin in the game, and hopefully discourage people who are getting in it for the wrong reasons.
For guardians of person, the bond amount doesn’t usually exceed $100, however, estate guardians could face a much higher amount. The specifics of your bond requirement will depend on your case and is something your attorney can discuss with you in greater detail.
Guardianship Attorneys in Texas
At Neal Ashmore, we understand that choosing to pursue guardianship over a loved one is a delicate matter and not one you’ve considered lightly. When consulting you on these matters, we commit to exploring all avenues of resolution with you, and are always open to the possibility of less invasive measures—such as power of attorney, or a living will—which can sometimes accomplish similar ends.
If you have further questions about guardianships, call us today at (972) 436-8000, or schedule a consultation online for competent, sensitive attorneys, who will handle your case with the gravity you and your loved one both deserve.
