Guardianship was conceived as a means of assisting individuals incapable of fully attending to their own needs, either because they are children whose parents have died or are not physically or emotionally up to the task, or because they are elderly and physically or mentally incapacitated. While in old English novels wards are often orphaned children, most current cases of guardianship concern an elderly parent or other relative.
The law has many provisions that enable the guardian to tend to the ward by giving that individual legal power over the person with special needs. Nonetheless, the state of Texas, like other states, recognizes that there is potential for abuse in the guardian/ward relationship and has therefore legislated protections for the ward from his or her guardian as well as from external dangers.
The government’s goal is to provide for care and protection for the ward while ensuring that his or her civil rights and independence are preserved. If you have been named as a guardian or a ward, or someone to someone who is a ward, it is important to know some of the basic laws that regulate this legal, as well as personal, relationship. The laws dealing with guardianship are numerous and complicated so it will be necessary to engage the services of a trustworthy guardianship attorney in order to deal with this situation with confidence.
Laws That Help the Guardian Protect the Ward
Because the guardian is designated as a person who can make legal decisions for the ward, Texas law requires that guardians must be notified of all available community-based services and options for medical, therapeutic, and recreational services that are available to the ward. It also ensures that guardians be informed and involved in the placement of the ward in any type of institution.
Laws That Protect the Ward’s Rights
Texas law requires that, during guardianship proceedings, all three of the following be carefully considered in terms of the “best interest of the ward”:
- Necessity of guardianship
- Extent of the ward’s incapacity and whether it is permanent
- Most appropriate person to be appointed as guardian
A physician’s certificate of medical examination from a licensed physician must be submitted and approved by the court in order for a guardianship to be established. Also, as an important safety valve, the ward is appointed an attorney ad litem to protect the ward’s rights and to be present during the hearing to establish the guardianship.
In cases in which there is no relative available to be the incapacitated person’s guardian, the state requires that a paid professional be assigned the role of guardian. In such cases, the would-be guardian must have the required certification under the Certification Requirement for Private Professional Guardians and Public Guardians. Obtaining the certification necessitates training in the duties and responsibilities of a guardian.
Also, assuming the ward has sizable assets, the guardian is also a fiduciary and has to undergo a criminal background check and have his or her fingerprints taken. The guardian must give an annual accounting to the court and the court is authorized to remove a guardian who abuses, exploits, or neglects the ward. Also, family members must be notified of their right to be informed of all actions relating to the guardianship.
Clearly, guardianship should never be undertaken lightly. The complexities of creating a guardianship in Texas require that you find a guardianship attorney who has the experience and comprehensive knowledge of Texas law to assist you.