There are many reasons you may need to assume the role of guardian for another adult in Texas. A prime example is protecting an aging relative who is experiencing some form of dementia. When someone is incapacitated to the degree that they need help taking care of themself, their finances, or both, guardianship is often the answer.
Working closely with an experienced Round Rock guardianship attorney from the start is always the best path forward. The right legal professional can help ensure that everyone’s interests are protected.
Becoming a Ward of the State
When a court identifies an adult as incapacitated—meaning he or she lacks the ability to make primary decisions on his or her own behalf—and there is no one capable or willing to serve as guardian, that person becomes a ward of the state.
Under these circumstances, the state steps in to assume the role of legal guardian, which includes making important decisions and ensuring the individual’s care and protection. In Texas, guardianship is managed by probate courts, and legal steps are required to protect the ward’s rights and well-being.
Beginning the Guardianship Process
The guardianship process begins when a concerned party, such as a medical provider or social service agency, files an application on the incapacitated individual’s behalf. The application must outline the ways in which the person is incapable of managing his or her life and explain why there is no suitable private guardian available.
This usually means that no one in the person’s life is able or willing to take on the significant responsibility of guardianship. For help navigating this process, speak with a Round Rock guardianship attorney as soon as possible.
Next Steps
Once the application is filed, a guardian ad litem will be appointed to represent the best interests of the proposed ward. A licensed physician or psychologist must also evaluate the person to assess mental and physical incapacity—a key factor in the court's decision.
The Court’s Role
If the court concludes that the individual in question is not able to make decisions on their own behalf and determines that there is no better option, such as appointing a private guardian, it will likely appoint a state- or county-level guardianship program to take on the role.
At this point, the person becomes a ward of the state, and the program in charge shoulders the responsibility of making primary decisions for them.
In situations in which state guardianship is assigned, it becomes subject to ongoing oversight by the court. The court requires an annual report that documents the ward’s overall well-being and finances. The court is called upon to monitor the state or county guardianship arrangement and effectively address any concerns that arise.
Becoming a Guardian
When guardianship of a ward of the state is transferred to an individual, it establishes a legal arrangement in which the ward’s decision-making authority is assumed by their private guardian.
The court also oversees this guardian/ward relationship. Generally, wards are adults who are incapacitated, which means they have a mental or physical condition that interferes with their ability to manage their finances or to adequately attend to their own basic needs in relation to matters like the following:
Shelter
Food
Clothing
Personal hygiene
There are two primary types of guardianship in Texas:
Guardian of the Person
A guardian of the person makes key decisions regarding a ward’s personal matters, including housing, health care, and education. Examples of responsibilities include:
Deciding where the ward will live, including placing them in assisted living or a nursing home
Consenting to medical care
Approving or denying travel plans
When a decision needs to be made that is of meaningful consequence to your ward, you’ll be required to make it.
Guardian of the Estate
A guardian of the estate manages the ward’s assets and finances. This role carries fiduciary duties, which means you must act in the ward’s financial best interests. Breaching this duty can result in legal consequences.
Typical responsibilities include:
Paying their bills
Applying for benefits and signing contracts on their behalf
Investing their money
Filing lawsuits on their behalf
A guardian can be appointed as both guardian of the person and of the estate.
Finally, if you have questions or concerns about establishing guardianship, modifying an existing guardianship, or simply addressing issues you’re experiencing in relation to guardianship, it’s time to consult with a practiced guardianship lawyer.
Guardianship Can Be Full or Limited
Texas courts can assign full or partial guardianship when it comes to guardianship of the person or of the estate. The determining factor in each case is the level of the ward’s incapacity and the extent of their needs.
When the guardianship is full, you can expect to make all the critical decisions on your ward’s behalf – whether that means regarding their personal well-being, their finances, or both.
When guardianship is limited, however, it means that your responsibilities will also be limited to your ward’s specific needs—whether personal, financial, or both.
Your ward will retain the right to make certain kinds of decisions for themselves, including the right to sell property or to divorce. The judge presiding over the guardianship case generally sets the parameters that apply.
Permanent vs. Temporary Guardianship
Permanent guardianship is appropriate when the incapacitation is expected to continue indefinitely.
Temporary guardianship may be granted when the incapacitation is temporary, for example, due to an injury. Once the person recovers, their rights can be restored, or the court can modify the arrangement if necessary.
The Guardianship Process
To become someone’s legal guardian in Texas, a formal procedure that includes a court process is required. You’ll begin by filing your guardianship application with the county court in which your ward resides. In larger counties, like Williamson County, where Round Rock is located, the probate court handles these matters.
The Guardianship Application
Your application must clearly demonstrate why the person in question requires guardianship.
This means including a good deal of information and details about their incapacitation, which should highlight their inability to handle their own personal affairs, their own financial affairs, or both. You’ll need to include the relevant medical or psychological evaluations to support your claim regarding the individual’s limitations.
The Hearing
The court will review your application, and – if it’s warranted – will schedule a hearing on the matter. It’s during this hearing that the court will take your evidence and the testimony provided into careful consideration.
If guardianship is determined to be suitable to the individual’s requirements, the court will evaluate whether you, as the proposed guardian, are a good fit for the role in terms of being capable of effectively handling the involved responsibilities.
It’s important to point out here that Texas courts are always motivated to preserve individual rights to the fullest degree possible. This means that, if there is a less-restrictive option than guardianship, it will be chosen, and the court will assign the least restrictive guardianship requirements that serve the ward’s needs when guardianship is determined to be the answer.
Approval
If the court approves the guardianship, an order will be issued. You will be legally authorized to make decisions within the limits set by the court. Your guardianship must, however, be officially registered with the Judicial Branch Certification Commission (JBCC).
The process of assigning guardianship is designed to achieve legal transparency and to ensure that proper oversight of guardians is maintained, which is needed to help protect the rights of vulnerable wards. As a guardian, maintaining your effectiveness in the role and your integrity in relation to your immense responsibilities is of primary concern.
Taking the Right Steps Forward
In order to become a guardian in Texas, you’ll need to take all the following primary steps in order to acquire the authority to make critical decisions on your family member or friend’s behalf:
Hiring a capable guardianship attorney – your proposed ward requires legal representation, and the state won’t allow you to take on the task
Obtaining a Certificate of Medical Examination that is issued by a doctor and that establishes your ward as incapacitated and – therefore – unable to make key decisions in support of their own best interests
Instruct your trusted guardianship lawyer to submit your guardianship application to the Williamson County probate court
Complete your guardianship training, which includes having a background check and registering your guardianship with the JBCC
The kind of guardianship you assume will depend on the unique circumstances of your case and the judge’s determination regarding your ward’s needs.
FAQs
What if there is no one suitable to become the guardian of a person in need?
The court may appoint the state to serve as guardian if no suitable family member or friend is available.
How is guardianship determined in Texas?
Guardianship is determined on a case-by-case basis. If an individual cannot make essential decisions, the court may appoint a guardian.
Can I become my loved one’s guardian?
Yes, if you are willing and able to take on the responsibility. The best step is to contact a Round Rock guardianship attorney.
Discuss Your Situation with a Round Rock Guardianship Lawyer Today
Brett Pritchard at the Law Office of Brett H. Pritchard is a seasoned Round Rock guardianship lawyer who is ready to help. We encourage you to contact us online or call us at 254-781-4222 to schedule your FREE consultation today!