- Key Terms
- Filing an Application
- Obtaining Medical Evidence
- Providing Notice
- Filing Proof of Notice
- The Court Appoints an Attorney ad litem
- The Court Investigator Makes a Report
- The Court Conducts a Hearing
- The Applicant Posts a Bond
- The Applicant Obtains Letters of Guardianship
- The Guardian Administers the Estate
A guardianship is a legal proceeding designed to supervise and protect individuals who are deemed “incapacitated” as defined by law. The Texas Probate Code defines an “incapacitated person” as an adult individual who, because of a physical or mental condition, is substantially unable to:
- Provide food, clothing, or shelter for himself or herself;
- Care for the individual’s own physical health; or
- Manage the individual’s own financial affairs.
The definition also includes a minor or a person who must have a guardian appointed to receive funds due the person from any governmental source. The “ward” is the person who requires help. The “guardian” is the person appointed by the court to help the ward manage his financial affairs and care for himself or herself.
Applicant – the person applying to be appointed as guardian.
Contestant – the person opposing the applicant from being appointed as guardian.
Proposed ward – the person over whom the guardianship is sought.
Attorney ad litem – the attorney the court must appoint to represent the proposed ward.
Guardian ad litem – the attorney the court may appoint to advocate for the proposed ward’s best interests.
Court investigator – the county employee who investigates the circumstances of the guardianship and reports their findings to the court.
Guardianship of theEstate – refers to the proposed ward’s property (finances and property management).
Guardianship of thePerson – refers to the proposed ward’s person (medical, clothing, and shelter).
The underlying theme of guardianship law is protecting the rights and welfare of incapacitated persons, and safeguarding their assets when they can no longer do these things for themselves. There are a number of alternatives to formal guardianship proceedings, but most cases involve the Court’s creation of a relationship between the incapacitated person and their guardian. The guardian owes specific legal duties to the incapacitated person and is accountable to the Court for any action taken. The Court will typically tailor and forge a relationship that meets the needs of the incapacitated person while permitting that incapacitated person to retain as many rights as possible.
Thus, guardianships in Texas are generally an avenue of last resort – when the government (through the judiciary branch) steps in to balance the welfare of an incapacitated person against that person’s ability to care for themselves on a temporary or permanent basis. Because the rules are so similar to those that govern the administrator of a decedent’s estate, the same courts that appoint executors and administrators appoint guardians as well. Depending on the circumstances, the Court might appoint a Guardian of the Person, a Guardian of the Estate, or both. The guardianship might be temporary or permanent. In every case, the Court remains actively involved in the welfare of the incapacitated person’s life and in the management of their estate.
Guardians of every type must meet their own legal obligations by filing recurring documents with the Court. They might be required to simply advise the Court of the incapacitated person’s personal and medical status, or they might be required to provide a detailed accounting of their management of any property or funds entrusted to their care as guardian. Every person seeking guardianship of another, and every person appointed as someone’s guardian, should have the assistance of competent and experienced counsel as they navigate through their responsibilities.
Once appointed, the guardian administers the estate subject to court approval. This means that the guardian must have court approval to take almost every action. Generally, to obtain court approval, the guardian is required submit a written application, give notice, and attend a hearing. There are only a very few actions that a guardian may take without court approval; these actions include:
- Releasing a lien on payment at maturity of the debt secured by the lien;
- Voting stocks by limited or general proxy;
- Paying calls and assessments;
- Insuring the estate against liability in appropriate cases;
- Insuring property of the estate against fire, theft, and other hazards; and
- Paying taxes, court costs, and bond premiums.
The necessity to have the court involved in the management of the guardianship is the essential distinguishing feature from other management arrangements, such as a power of attorney, which generally involves no court supervision.
The Applicant files an application with the appropriate court.
Any person may commence a guardianship proceeding (with limited exceptions). An application for an adult wards guardianship must be filed in the county in which the proposed ward resides, is located on the date the application is filed, or in the county in which the principal estate of the proposed ward is located. A proceeding for the appointment of a guardian for the person or estate, or both, of a minor may be brought:
- In the county in which both the minor’s parents reside;
- If the parents do not reside in the same county, in the county in which the parent who is the sole managing conservator of the minor resides, or in the county in which the parent who is the joint managing conservator with the greater period of physical possession of and access to the minor resides;
- If only one parent is living and the parent has custody of the minor, in the county in which that parent resides;
- If both parents are dead but the minor was in the custody of a deceased parent, in the county in which the last surviving parent having custody resided; or
- If both parents of a minor child have died in a common disaster and there is no evidence that the parents died other than simultaneously, in the county in which both deceased parents resided at the time of their simultaneous deaths if they resided in the same county.
The Applicant obtains the necessary medical evidence and files it with the court.
To establish a permanent guardianship, the applicant must file the appropriate “Doctor’s Letter” with the court. The Doctor’s Letter must contain certain information required under the probate code and must be dated within 120 days from the date the applicant files for guardianship, and be based on an examination that was performed within 120 days of the date the applicant files for guardianship. The Doctor’s Letter must be in a specific form.
The Applicant must notify specific persons and institutions of the pending application.
Many individuals may need to be served or notified on the filing of an application for guardianship. The court clerk first issues a citation stating that the application for guardianship was filed, the name of the proposed ward, the name of the applicant, and the name of the person to be appointed guardian as provided in the application, if that person is not the applicant. The citation must cite all persons interested in the welfare of the proposed ward to appear at the time and place stated in the notice if they wish to contest the application. The citation is also posted at the court for a proscribed period. In addition, a sheriff or other officer must personally serve the citation and application for guardianship on several individuals including:
- A proposed ward who is 12 years of age or older;
- The parents of a proposed ward if the whereabouts of the parents are known or can be reasonably ascertained; and
- Any court-appointed conservator or person having control of the care and welfare of the proposed ward.
The Applicant must mail a copy of the application for guardianship and a notice containing certain information required in the citation by registered or certified mail to a wide variety of persons, if their whereabouts are known or can be reasonably ascertained, including:
- All adult children of a proposed ward; and
- All adult siblings of a proposed ward.
The Applicant files proof of delivery or the appropriate waivers with the court.
After serving the required individuals or institutions, the Applicant must then file with the court:
- A copy of any notice required and the proofs of delivery of the notice; and
- An affidavit sworn to by the Applicant or the Applicant’s attorney stating that the notice was mailed. Waivers of notice may be obtained from any person other than the proposed ward.
The court may not act on an application for the creation of a guardianship until the Monday following the expiration of the 10-day period beginning the date service of notice and citation has been made as required by law.
The court appoints an Attorney ad litem to represent the proposed ward.
In a guardianship proceeding the court is required to appoint an Attorney ad litem to represent the proposed ward. These guardianship attorneys are certified and are familiar with the guardianship process. Their fees are generally paid from the ward’s estate. In uncontested proceedings, the guardianship attorney ad litem’s fees typically do not exceed $1,500.
The Court Investigator makes a report.
The court also appoints a Court Investigator who works for the county to investigate the circumstances surrounding the guardianship application. This social worker personally visits the proposed ward and will often speak to several family members and interested parties. Ultimately, the Court Investigator will write a report recommending the outcome that he or she believes is appropriate. This report is filed with and considered by the court.
The court conducts a hearing.
Under Texas Probate Code Section 684, to create a guardianship, the court must find by clear and convincing evidence that:
- The proposed ward is an incapacitated person;
- It is in the best interest of the proposed ward to have the court appoint a person as guardian of the proposed ward; and
- The rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.
The court must also find by a preponderance of the evidence that:
- The court has venue of the case;
- The person to be appointed guardian is eligible to act as guardian and is entitled to appointment, or, if no eligible person entitled to appointment applies, the person appointed is a proper person to act as guardian;
- If a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which the minor is not otherwise eligible for enrollment; and
- The proposed ward is totally without capacity to care for himself or herself and to manage the individual’s property, or the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage the individual’s property.
The court may not grant an application to create a guardianship unless the Applicant proves each element required by Texas Probate Code Section 684. A determination of incapacity of an adult proposed ward, other than a person who must have a guardian appointed to receive funds due the person from any governmental source, must be evidenced by recurring acts or occurrences within the preceding six-month period and not by isolated instances of negligence or bad judgment.
Once appointed, the Applicant qualifies and posts a bond.
A guardian is deemed to have duly qualified when he or she takes and files an Oath, and has made the required bond by filing it with the clerk and having that bond approved by the judge. A guardian who is not required to make bond duly qualifies when the guardian takes and files the required Oath.
With limited exceptions, a guardian is required to obtain a bond. The bond ensures the guardian’s performance of his fiduciary duties and protects the ward’s estate. In essence, the bond is an insurance policy for the ward’s estate. In Dallas County, the courts typically require only a $200 personal surety bond for the guardian of the person. The amount of the bond for the guardian of the estate is largely determined by the amount of liquid assets belonging to the ward, plus income for one year.
A guardian of the person may give the following types of bonds when there is no guardian of the estate:
- A corporate surety bond;
- A personal surety bond;
- A deposit of money instead of a surety bond; or
- A personal bond.
There are several ways a guardian of the estate may give his or her bond. The guardian may give:
- A corporate surety bond;
- A personal surety bond; or
- A deposit of money instead of a surety bond.
Many times the court appointed guardian cannot qualify for a corporate bond, because the guardian has a poor credit score or insufficient net worth, or both. If the guardian is not willing to deliver the proposed ward’s assets for safekeeping, then a personal surety bond may be the last alternative. When personal sureties post bond, each personal surety must execute an affidavit stating the amount of the surety’s assets, reachable by creditors, of a value over and above the surety’s liabilities. Moreover, the sureties’ total worth must equal at least double the bond’s amount.
The Applicant Obtains Letters of Guardianship.
After the court appoints the guardian, and after the guardian has qualified, the clerk issues Letters of Guardianship. These Letters evidence the guardian’s authority to act on behalf of their ward. The Letters are valid for one year and must be renewed annually.
Guardianships are as perpetual as they need to be. Some might last until a ward recovers from an injury, while others may last a ward’s entire lifetime, or only until they turn 18. To the Court, guardianships last 12 months at a time. They are renewed when the Court approves a yearly report or accounting, depending on the type of guardianship created. Guardians of the person must report annually on the ward’s condition, and guardians of the estate must provide detailed accountings of the ward’s property.
The guardian takes possession of the estate, gives notice to creditors, files an inventory, applies for a monthly allowance, and administers the estate.
Once appointed, the guardian has a duty to collect and secure the assets of the estate. The guardian must also deal with the ward’s debts. Within 30 days of qualifying, the guardian must post a general notice to creditors in a newspaper. In addition, within four months after qualifying, the guardian must send, by certified mail, notice to each secured creditor of the estate. Dealing with creditors can be tricky, and if done improperly, may subject the guardian to personal liability.
Within 30 days of qualifying, the guardian is required to file an inventory listing the ward’s assets. If the court did not set a monthly allowance when the guardian was appointed, the guardian may request a monthly allowance for the education and maintenance of the ward within 30 days after qualifying. The guardian is a fiduciary and can only spend the ward’s estate as authorized by the court and for the benefit of the ward.
Is there anything that I can do to avoid having a guardianship?
Yes. You can execute a durable power of attorney for financial affairs and a medical power of attorney. These instruments may prevent the necessity of having to open a guardianship proceeding if and when you become incapacitated.
What happens if I become incapacitated and do not have a financial or medical power of attorney?
A guardian of your estate will have to be appointed to manage your financial affairs. Similarly, a guardian of your person will have to be appointed to manage your physical needs. The Guardian of the Estate pays the bills, subject to a Court’s approval. The Guardian of the Person selects the doctors and the residence. Like dependent administrations of a decedent’s estate, guardianships are usually expensive and require significant court involvement.
Are there any limitations on the actions of someone who has a power of attorney?
Yes. First their actions are limited by the terms of the instrument conferring their authority. While most power of attorney forms (financial and medical) convey broad powers on the principal, these forms may be tailored for specific purposes. In addition, these instruments may be drafted so that the powers are effectively immediately, or in the alternative, so that they “spring” into existence upon incapacity. One should never presume that an action is permitted without first reviewing the power of attorney form. Second, the agent, or the person holding the power of attorney, is a fiduciary and owes their principal certain fiduciary duties. Fiduciary relationships are special legal relationships and create many legal presumptions and burdens.
When is a guardianship for a minor child (someone under the age of 18) appropriate?
Guardianship of the Person. Typically, parents are considered to be the natural guardians of the person of their minor children. Therefore no court procedure is required to appoint a guardian of the person. Guardianships of the person are very similar to the conservatorships established by family courts. A guardianship of the person may be appropriate when the ward’s parents die. Once a guardian of the person is established, the guardian may obtain court authority to act on the ward’s behalf, which includes making decisions about the ward’s living arrangements, health care, and emotional and physical well-being.
Guardianship of the Estate. Guardianships of the estate for a minor child may be appropriate whenever a ward owns property outright, for example:
- By virtue of inheritance;
- By virtue of tort claims; and
- By virtue of a right to receive child support.
Inheritance. Title in property vests immediately on death. If the decedent planned poorly, a minor could inherit the property directly. Probate courts do not allow an executor or administrator to pay an inheritance to a minor directly. Life insurance companies will generally not pay a death benefit directly to a minor. Instead the courts require that a guardianship of the estate be established or some other alternative.
Tort claims. If a child is injured due to the personal or intentional acts of another, the child has certain legal rights that are personal to the child. Although certain individuals may pursue the claims on the child’s behalf, they cannot accept the settlement proceeds for the minor child. To approve and manage the settlement, the courts require that a guardianship of the estate be established or some other alternative.
Child support. If a parent who receives child support dies, the child support obligation does not cease. Instead, the surviving parent must continue to pay child support to the child. One of the persons entitled to receive the payments is a guardian of the child’s estate. Similarly, if the parent who is obligated to pay child support dies and the divorce order or settlement agreement provides that payments survive death, then the child has a claim against the deceased parent’s estate for the child support.