Guardianship basics
Age, disease, or accident may deprive a person of the capability to care for one’s personal or financial needs. Texas law suggests a method through which a guardian can handle that individual’s affairs under the oversight of the court. Filing for guardianship is a legal action of last resort when other attempts, such as trust, joint accounts, or power of attorney, have failed. It is also an alternative used when family members or third parties won’t accept the powers of other legal documents.
A document is assigned through a court proceeding and legally represents the person with a disability (the ward) by proxy. Once assigned, the guardian holds the same responsibilities and rights as the ward. The guardian is not personally accountable but only as of the representative of the ward.
Limited or general
A guardianship may be either a limited or general custody determined by the severity of the disability of the ward. The law states that the court may only grant the powers that are requisite for a guardian to perform their duties.
Person and estate
A guardianship may be of the person, which means that the guardian manages the personal affairs of the ward or of the estate, which means the guardian handles the financial matters as well. In many instances, the guardianship incorporates both the ward and the estate.
Temporary guardianship
A temporary guardianship should be considered when there is an imminent danger to the individual or the estate of that individual. Temporary custody is an emergency action. The temporary guardian will only be awarded the powers required to safeguard someone’s person or estate. These are exceptional means and occur in a very brief period. Due to the circumstances, there is typically a minimal hearing. Temporary guardianships are reviewed at later times when conditions allow.
Permanent guardianship
Permanent guardianship is awarded when an individual is unable to care for themselves, such as their personal or financial needs. A doctor’s statement is typically used as the basis for assessing the person’s capacity to handle certain activities such as making decisions about medical needs, paying bills, and living arrangements, therefore justifying the guardianship. For the permanent custody, there is a full hearing in front of a judge.
The process of creating a guardianship
Guardianships are established through a court proceeding. An application needs to be filed with the court, and if available, a statement by a medical professional must be submitted as well. However, if a medical report is not available, there is a court procedure that allows for such a statement to be more readily accessible. The ward’s exact capabilities will be outlined in the medical report and will determine how much power will be granted to the guardian. When the application has been successfully filed, it will be served to the proposed ward, as this is the formal process of notifying an individual when there is a court action pending. When the service arrives back to the court, the judge must designate an attorney for the nominated ward. A hearing will be scheduled if the guardianship is uncontested, and the court will hear the evidence and name a guardian. However, if the application is contested, the proceeding may become complicated. In these situations, it can vary extensively from case to case. All guardianships are medically motivated. The court will attentively listen to the recommendations of the physicians and generally follow their advice as to what limitations need to be established to protect the ward. Furthermore, in contested situations, the issue that arises is often not whether the ward needs a guardianship but who that guardian should be. In these situations, the judge will hear all sides, consider the preferences of the ward, and, if specified by the medical report, designates a guardian.
Guardianship administration
The guardianship continues after the appointment of the guardian as they must file an oath and bond to qualify to act as guardian. Once qualified, the court will issue letters of guardianship, which serve as legal proof that the guardian may act on behalf of the ward.
In the years to come, the guardian must report to the court each year regarding the ward’s conditions, such as their health, living arrangements, and general well-being. If managing the estate, the guardian is required to file a meticulously maintained report accounting for every portion of income and expenditure made on behalf of the ward. A court auditor will review all accounting and records, allowing for anyone to comment or protest the accounting. However, after some time has passed and if no one has contested, and the judge has found the accounts to be in proper order, the court will approve the accounting.
Weighing the Options
Guardianships are a critical action performed only as a last resort after other alternatives have been considered. Some advantages can significantly benefit an individual who is under consideration to be a ward. However, there are disadvantages to keep in mind, as well. If you find yourself in need of assistance in assessing the need for a guardianship, contact a certified elder law attorney. Custody is one area where only an attorney can give you concise and complete advice that can save you thousands of dollars. Certified elder law attorneys have passed a national exam, which includes knowledge about public benefits, and their extensive experience working with clients gives them the expertise required to help their clients through the vast array of issues they face. The elder law Certification is recognized but not certified by the Texas Board of Legal Specialization. Due to this, it provides the public assurance that the professionals they are consulting with at law firms have the background required to advise them.
Schedule a Consultation Today to Discuss Texas Guardianships
Our team of attorneys has over 35 years of experience helping with elder law and guardianship matters. We welcome you to call the Voeller Law Firm today at (210) 651-3851 to request a consultation and learn more about guardianships. We are proud to serve the greater San Antonio, Bexar County, Comal County, Guadalupe County, and South Texas areas.
