Guardianship is an important legal tool that allows a responsible party – often a family member of the person in need of guardianship, or the ward – to assume full or partial decision-making power on behalf of their ward.

In other words, as a guardian, you are called upon to make primary decisions for your ward, who is incapacitated in some way and who, therefore, is unable to make primary decisions for themself.

The kinds of decisions you’ll make and the extent to which you’ll be called upon to do so will be determined by the court. The most likely scenario as a parent of a child who is incapacitated in the legal sense is assuming guardianship at the point that they become an adult.

Guardianship involves complex legal issues, which makes having an experienced Killeen guardianship attorney backing you up from the outset the surest path forward. They can protect your family and work to avoid unnecessary legal conflicts during the process.

As Your Child Approaches Adulthood

If your child has a serious disability that leaves them unable to make certain important decisions on their own behalf, you’ll need to establish your guardianship over them at the point that they reach adulthood.

When your child is a minor, you, as their parent, already have the authority to make all the big-picture parenting decisions that guide their health, education, financial support, and participation in extracurricular activities and travel.

Once your child reaches adulthood, however, your legal authority ends. To assert your authority as a guardian in Texas, you’ll need to file a petition with the probate court in the county of your shared residence – or in the county of your adult child’s residence.

Texas courts are motivated to afford those whose disabilities incapacitate them to one degree or another with as much independence as possible. This means that the degree of guardianship your child requires will be determined by the extent of their incapacitation.

Incapacitation in the Eyes of the Law

The meaning of incapacitation in relation to Texas law refers to anyone who falls into any of the following categories:

• Minors – or those who have not yet reached the age of 18

• Adults who, as a result of their physical or mental health, are substantially unable to address their needs regarding their own physical health and well-being, their own financial affairs, or their own food, clothing, and shelter

• Those who require guardianship to receive governmental benefits or funds

The Petition for Guardianship

The process of petitioning for guardianship is complex. In order to successfully navigate the path forward, you will need to demonstrate your adult child’s specific areas of need when it comes to supervision. The court’s goal is to implement the least support required to provide your child with the help they need without infringing on their independence.

The basic areas of concern include each of the following:

• Your child’s ability to take care of the activities of daily living, including feeding themself, addressing their regular hygiene needs, and dressing themself

• Your child’s ability to drive or use public transportation

• Your child’s ability to handle their own finances and to make reasonable financial decisions on their own behalf

The court may require you to prove that you’ve considered less intrusive options than guardianship in a particular area of your child’s life.

Examples include setting up joint bank accounts or becoming your child’s representative payee to help them manage their finances, implementing a joint decision-making agreement that ensures you and your child address primary decisions regarding specific topics together, and setting up special needs trusts and savings accounts to assist in their financial decision-making.

The Guardian Ad Litem

Once you and your trusted guardianship lawyer file your petition for guardianship with the court, a guardian ad litem will be assigned to represent your child’s best interests in the guardianship process. The guardian ad litem is a legal professional tasked with promoting solutions that support your child, in relation to their specific needs.

This could mean helping to establish a less intrusive means of protecting their best interests than guardianship. While guardianship serves an important role when it’s needed, it is the last choice when there is any possibility that a less restrictive option is available.

Every guardianship case is unique to the specific circumstances that apply, and every case must be considered in relation to the exact situation at hand. The steps the guardian ad litem will take in their efforts to establish what’s best for your adult child are likely to include each of the following:

• Discussing the matter of guardianship with your child, determining their understanding of the legal process, and assessing their preferences on the matter

• Carefully reviewing your child’s medical and school records

• Speaking with your child’s teachers as well as with those who know them well, in an effort to establish the full scope of their needs

Your child’s guardian ad litem will compile all the information gathered and will participate in the guardianship hearing on their behalf, offering their insight into your child’s best interest in the process. From here, the court will decide on the matter of your child’s guardianship needs.

If you’re unsure how a guardian ad litem may affect your case, reach out to a seasoned Killeen guardianship attorney for guidance.

Legal Guardian Defined

As your minor child’s parent, you are also their guardian. Once your child reaches the age of adulthood, however, you remain their parent but are no longer their legal guardian – because they have become an adult who has the legal agency to make important decisions on their own behalf.

To become an adult’s guardian – even your own child’s – they must be incapacitated to the degree that they need help making decisions for themselves, in one or more primary areas of their life.

This means that if you become the guardian of your adult child, you assume the responsibility of making reasoned decisions that support their best interests. This may apply to every category of need or may be limited to specific areas of need.

As your adult child’s guardian, you are authorized by the court to make financial, healthcare, and legal decisions for them. You are also responsible for their care in relation to providing them with food, shelter, clothing, and assistance with the activities of daily living, in relation to their specific needs and as ordered by the court.

Signing an Oath and Bond

Once the court appoints you as your adult child’s guardian, you’ll need to sign an oath and bond in order to ensure your eligibility. Once you’ve qualified, the court will issue a letter of guardianship, which is your proof that you’re entitled to act on your adult child’s behalf.

Your responsibility from here includes providing the court with an annual report that outlines your child’s living arrangements as well as their overall health and well-being. In addition, if you take on financial responsibility for your adult child, you will need to keep a detailed record of their estate’s income and expenses and will need to file it with the court.

Various Types of Guardianship in Texas

In the State of Texas, there are four primary types of guardianship.

Guardian of the Person

Guardian of the person can be either partial or full, and it relates to providing your ward, which in your case is your adult child, with the care, supervision, shelter, clothing, and food they need. If your responsibility for your adult child as guardian of their person is partial, the court will outline the specific areas that you’ll need to address on their behalf.

Guardian of the Estate

Guardian of the estate can also be partial or full, and it relates to managing your adult child’s financial affairs as well as managing any properties they may own. This role is designed to address your child’s assets, liabilities, and estate management needs overall.

In the event that your guardianship is partial, the court will tailor your responsibilities to your child’s needs and to the protections required by their estate.

Guardian of the Person or of the Estate

If you become the guardian of the person or of the estate of your adult child, you’ll take on the responsibility of addressing their care needs as well as the responsibility of making financial decisions on their behalf. The idea is to cover the full complement of your adult child’s day-to-day, financial, and long-term needs.

While one person can be appointed a ward’s guardian of the person and another individual can be appointed the ward’s guardian of the estate, only one person can be assigned the role of guardian of the person or of the estate.

Temporary or Emergency Guardianship

The court temporarily establishes temporary or emergency guardianship in response to emergency or otherwise urgent circumstances. This can be an initial step prior to a more complete court hearing in which the need for long-term guardianship is addressed, or it can be on a more temporary basis.

If you need immediate guardianship to address an emergency, speak with an experienced guardianship attorney right away.

The Modification, Restoration, or Termination of Guardianship

In some guardianship cases, the ward involved can have some or all of their decision-making rights restored, which can be addressed by either a court modification, restoration, or termination.

Guardianship Modification

In a guardianship modification case, the court carefully assesses the ward's regained abilities and the degree to which they’ve done so.

If they’re determined to be better positioned to address a specific need included in the guardianship, such as managing their own finances, their guardianship could be modified to address the guardian of the person only, rather than the more complete role of guardian of the person or of the estate.

Restoration of Rights

If the ward has fully regained the ability to manage their life and are no longer incapacitated, the individual’s rights can be fully restored. This requires a clear demonstration that the ward has regained their capacity to navigate their own life independently. In this event, the guardianship ends, and the guardian’s role is terminated.

Guardianship Terminations

A guardianship is generally terminated in response to the ward’s rights being restored or as a result of other circumstances, such as the death of the ward – once the guardian effectively closes their estate.

The Approach to Guardianship in Texas

The State of Texas employs what’s called a top-down approach when it comes to appointing guardianship, and this means that close family members are generally given priority. When the ward in question is a minor, the following people have priority for guardianship in the following order:

• The child’s parents

• The person designated by their child’s last surviving parent

• The closest surviving adult relative of the child after the parents, which generally means a grandparent, aunt, or uncle

• A guardian who is not related to the child

If your child suffered an incapacitation during their childhood or was born with an incapacitation, you – as their parent who has cared for them throughout their early years – is in line to become their guardian into their adulthood.

In situations in which an adult becomes incapacitated, however, the matter of guardianship is assigned in the following order:

• The person appointed by the ward prior to their incapacitation

• The ward’s spouse

• A guardian appointed by the court – relatives are given preference in this process

Guardianship is legally challenging even in the most straightforward cases, which makes it always advantageous to work closely with a capable guardianship attorney from the start.

You Need an Experienced Killeen Guardianship Lawyer in Your Corner

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas, for more than 20 years – is an accomplished guardianship attorney who appreciates how important becoming your adult child’s guardian is to you and has the experience and legal insight to help make this happen.