In Texas, as elsewhere in the United States, a guardianship is a relationship created and monitored by a court. Although you may think of a guardianship in terms of protecting a child (like “Little Orphan Annie”), in Texas the person who requires guardianship is almost always an incapacitated adult. If you have a loved one who has suddenly or gradually become incompetent and is no longer able to make healthy or wise decisions regarding health or finances, it is time to seek out the services of an experienced guardianship attorney.
Hegwood Law Group has a number of conveniently located offices in the Houston area from which to serve your needs. Our elder law attorneys have been over the terrain of guardianships numerous times and are well-schooled in the process of establishing one for the benefit of your loved one. Our goal is always to make sure that your loved is legally protected and that you are comfortable in your new role.
What is a Guardianship?
Guardianship takes legal rights away from the individual (the ward) who is unable to exercise them in a reasonable manner — and gives them to a person appointed by the court (the guardian) to take care of the ward and protect his or her interests. Each guardianship is established to preserve the ward’s rights as much as possible. In each case, the court limits the guardian’s decision-making power in order to give the ward as much independence as he or she is able to handle responsibly.
Typically, guardianships are needed when the ward is mentally incapacitated and therefore is not legally permitted to sign a power of attorney document. Guardianships are essentially designed to protect incompetent individuals from their own poor judgment.
Types of Guardianships in Texas
There are two basic types of guardianships in Texas, as follows:
- Guardian of the Person: an individual appointed to make personal, medical, and welfare decisions for the ward
- Guardian of the Estate: a person appointed to make financial decisions regarding the ward’s assets that will preserve and protect those assets
If you become a guardian for an ailing elderly relative, you may request permission from the court to transfer a portion of your ward’s assets in order to allow the ward to qualify for government benefits, such as Medicaid. Whether you hold either or both guardianship positions, you will have to provide evidence that any expenses you have paid as a guardian are directly related to your ward’s care. Such expenses are strictly monitored by the courts.
What Will the Court Consider Before Granting Guardianship?
Clearly, the granting of a guardianship is a serious matter, since rights will be taken away from one person and given to another. The court must be convinced of:
- The extent of the ward’s incapacity
- The genuine need for guardianship proceedings
- The most appropriate person to be appointed guardian, taking into account “the best interest of the ward”
At Hegwood Law Group, we will guide you through the guardianship proceedings. We will make sure that you have the necessary detailed letter or certificate from a licensed physician to persuade the court of the need for guardianship. If you have decided that the guardian should be a compensated professional rather than a family member, we will see to it that the person chosen has the required certification (Certification Requirement for Private Professional Guardians and Public Guardians).
How Are the Rights of Wards Protected?
The law recognizes that a person may be more competent than he or she is given credit for and has made provisions for protecting wards from having their rights needlessly or maliciously taken away. With this in mind, the law allows wards and proposed wards to hire attorneys as long as the court deems those wards to have the intellectual capacity to sign a contract. The court also authorizes the removal of any guardian (family member or not) who abuses, exploits, or neglects an elderly ward who is disabled. Removed guardians, however, can file for reinstatement within 30 days of their dismissal.
The Texas Guardianship Certification Board
In 2005, the Texas Legislature created the Guardianship Certification Board which serves as a branch of the Texas Supreme Court. This board has developed certification requirements for “private professional guardians,” and sees to it that they are met. Any guardian in Texas who receives monetary compensation for serving as a guardian is required to be certified by the state. Such guardians must pass a written examination and also meet certain educational and work experience requirements before being approved. Family members, friends, attorneys, and financial institutions playing the role of guardian do not have to meet the Guardianship Certification Board’s requirements.
Discuss Your Options With a Houston Guardianship Attorney
The guardianship attorneys at Hegwood Law Group are well aware of the complexities, legal and emotional, surrounding the establishment of guardianships in Texas. If you find yourself in need of assistance regarding guardianship matters, get in touch with one of our Houston offices. You can contact us by phone or by filling out one of the contact forms on our website.