Guardianship Explained
A guardianship is a court-supervised administration created for a “ward”– a minor or an incapacitated adult – pursuant to Title 3 of the Texas Estates Code. There are two types of guardianship:
Guardian of the Person
A guardian of the person has the legal authority to exercise control over the ward by determining where the ward lives and in having the power to consent to medical, psychiatric and surgical treatment for the ward. Limitations exist with respect to whether or not a guardian of the person can admit the ward to an inpatient psychiatric facility, a residential care facility operated by the Texas Department of Mental Health and Mental Retardation, the administration of psychoactive medication, or electroconvulsive therapy. Despite these limitations, a guardian of the person can seek a court order to commit and transport the ward to a mental health facility for a preliminary examination as provided in Subchapters A and C of Chapter 573 of the Texas Health and Safety Code.
Guardian of the Estate
A guardian of the estate has a legal duty to take care of and manage the ward’s estate as a prudent person would manage his or her own property. This duty also includes the responsibility to account for all income, receipt of property, and disbursements made on behalf of the ward’s estate.
In administering the ward’s estate, a guardian of the estate has several time sensitive responsibilities, these include:
- Immediately taking possession of the ward’s personal property, record books, title and business papers;
- If the order granting the administration of the ward’s estate does not include a monthly allowance for the ward, the guardian of the estate must file an application requesting a monthly allowance for the ward’s maintenance and education within thirty (30) days of receiving Letters of Administration or as otherwise specified by the court.
- Publishing a general notice to creditors within one (1) month of receiving Letters of Guardianship;
- Sending notice to the Texas Comptroller of Public Accounts within one (1) month of receiving Letters of Guardianship;
- Sending notices to secured and unsecured creditors within four (4) months of receiving Letters of Guardianship;
- Filing a sworn inventory, appraisement and list of claims of the ward’s estate within thirty (30) days of receiving Letters of Guardianship;
- Invest funds and other assets of the ward’s estate that are not immediately necessary for the ward’s health, support and education, within one (1) year of the guardian’s receipt of any of the ward’s estate, unless otherwise ordered by the court; and
- File a detailed annual account with the court within sixty (60) days following the anniversary of the guardian’s receipt of Letters of Administration.
In some cases, only one type of guardianship is required for a ward, but in most cases both types of guardianships are required. The guardian of the person and guardian of the estate is usually the same person, but may be different people depending on the circumstances.
Qualifications to Serve as Guardian
Texas law establishes a priority list for who may serve as guardian for a minor or incapacitated adult. The court may skip over someone higher in priority if the court deems that person to be ineligible. The court may decide a person is ineligible to serve as guardian if:
- the person is a minor;
- the person’s conduct has been notoriously bad;
- the person is incapacitated;
- the person has certain conflicts of interest with those of the ward;
- the person, due to lack of experience, education or other good reason, is incapable of managing the ward or the ward’s estate;
- the person is found unsuitable by the court; or
- the person is not a resident of the State of Texas and has not designated an agent for service of process in Texas.
Before a guardian can act on the ward’s behalf under Letters of Guardianship, the guardian must qualify. To qualify, after an application for guardianship has been filed and a hearing is held on the application, the guardian must file his or her oath of office and will be required to file a bond as set by the court. Importantly, the powers of a guardian must be set forth in the order appointing the guardian. Except as specifically authorized by court order or as otherwise set forth by statute, a guardian does not have authority to act for the guardian. Acting outside the scope of a guardian’s authority or otherwise failing to act as required, can result in the court revoking the guardian’s Letters of Guardianship and personal liability.
Seek Experienced Legal Counsel
At The Hale Law Firm, we can help you determine if a guardianship is necessary, and if so, guide you through the complex process of establishing a guardianship for a family member or friend.
Guardianship proceedings are complicated, requiring the expertise of a skilled probate and elder law attorney. For wise and compassionate counsel, call one of our guardianship attorneys today for your free initial consultation. We represent clients in guardianship proceedings in Dallas County, Ellis County, Tarrant County, Johnson County, Kaufman County, Hill County, and Henderson County, Texas.