That some people cannot care for themselves is a fact of life, and the chance that someone will be unable to care for themself grows with age. One option their loved ones have to care for them is establishing a guardianship.

By nature, guardianship requires court approval following a hearing where the proposed ward and the proposed guardian are each represented by a lawyer. So, it is essential to hire an estate guardianship attorney. If you need assistance establishing, modifying, or terminating a guardianship, Robbins Estate Law can help. Our firm is a team of experienced estate guardianship attorneys passionate about estate law. Contact us today. 

What Is a Guardianship?

In Texas, the terms “guardianship” and “conservatorship” may be the opposite of what you expect. Conservatorships occur in child custody. Guardianships can apply to individuals of all ages but are used almost exclusively for adults 18 or older. A person can request a court appoint them guardian over someone legally incapacitated, the ward.

Texas has two types of guardianship: guardianship of the person and guardianship of the estate. You may request these guardianships together or separately.

Incapacity

A person is legally incapacitated when they have a physical or mental condition that makes them substantially unable to:

  • Provide for their food, clothing, or shelter;
  • Care for their physical health; or
  • Manage their financial affairs.

A person can be totally or partially incapacitated. In practical terms, partial incapacitation means the person may be able to do some of the above for themselves. Total incapacitation means they cannot do any of the above.

When the ward is partially incapacitated, you may request a limited guardianship. If the ward is totally incapacitated, you may request a full guardianship. 

Guardianship of the Person

A guardian of the person makes decisions for the ward about their personal affairs. These decisions typically include:

  • Where the ward lives,
  • Where the ward can go,
  • The ward’s level of contact with family and friends,
  • The ward’s mental and physical health treatments, and
  • What rights does the ward have.

The guardian’s powers may be limited by court order, especially concerning the ward’s rights.

Guardianship of the Estate

A guardianship of the estate empowers the guardian to make decisions involving the ward’s money and financial affairs. With court approval, the guardian may decide:

  • When and which bills to pay,
  • What to invest the ward’s money in,
  • What to do with the ward’s property, and
  • Whether to buy or sell property for or owned by the ward.

The guardian does not gain personal liability for the ward’s affairs by being appointed guardian.

How Do You Establish a Guardianship?

Texas law states that guardianships should be limited to circumstances where they are necessary to protect the ward and promote their interests. Guardianships should also grant the ward maximum self-reliance and independence. 

You apply with a probate court to establish an estate guardianship. Your application should explain the necessity of the guardianship and why it should be full or limited.

Application Requirements

Your written application must provide details about the proposed guardian and ward and include:

  • The type of guardianship you seek;
  • Whether you considered alternatives to guardianship;
  • Whether alternatives to guardianship are available and feasible;
  • The nature and degree of the ward’s incapacity;
  • What limits you are requesting on the ward’s rights;
  • Why a guardian is necessary;
  • An inventory of the approximate value of the ward’s property;
  • Details about the proposed ward’s spouse, parents, siblings, and children; and
  • What interest you have in becoming the guardian.

Depending on the circumstances, you may also need to provide information about:

  • Guardianships over the ward in other states,
  • People or organizations with custody of the ward, and
  • Powers of attorney for the ward.

Some of these requirements are as simple as providing names, ages, and addresses. Others are questions of fact, where the outcome generally turns on the ward’s practical ability to care for themselves. Some requirements—alternatives to guardianship and limits on the ward’s rights—have specific legal grounds the application should address. 

Alternatives to Guardianship

Texas specifically defines what qualifies as alternatives to guardianship. Before you request a guardianship, you should consider whether you can instead use:

  • A medical power of attorney,
  • A durable power of attorney or agent in fact,
  • A declaration for mental health treatment,
  • Appointment of a representative payee for public benefits,
  • A joint bank account, and
  • A management or special needs trust.

You should also consider whether any other alternative, person-centered decision-making strategy would work. Your application must demonstrate that only a guardianship will adequately protect and promote the proposed ward’s needs.

Rights Limitations

You can also request the court limit restricting the ward’s:

  • Right to vote,
  • Eligibility to get a driver’s license, and
  • Right to select their residence.

The court can limit some or all of these rights. 

What Are the Estate Guardian’s Powers and Responsibilities?

An estate guardian is responsible for managing the ward’s financial affairs. Managing the ward’s financial affairs may include:

  • Paying their bills,
  • Investing their funds,
  • Making purchases, 
  • Selling their property, and
  • Entering into contracts on their behalf.

You owe an obligation to act in the ward’s best interests as their guardian.

Notably, a guardian of the estate must ensure the ward can afford their expenses. As such, the guardian is empowered to dispose of property the ward already promised to someone else, even through a will drafted when the ward was not legally incapacitated.

Can You Contest an Estate Guardianship?

A ward must have their own attorney in any guardianship proceeding to ensure representation of the ward’s interests. If a ward does not agree to a guardianship, they may contest it through their attorney. Typically, this involves arguing that the guardianship is unnecessary, either at all or to the extent the proposed ward requests. 

When Can an Estate Guardianship End?

The guardianship may end if the court concludes it is no longer necessary or if the guardian files a yearly report indicating the guardianship should not continue. It may also end if the guardian, ward, or another person petitions the court to eliminate the guardianship.

Generally, terminating or modifying a guardianship requires a court hearing similar to the one to establish a guardianship. The applicant must explain why the guardianship is no longer necessary.

How Can an Estate Guardianship Lawyer Help?

An estate guardianship attorney can represent either the ward or the guardian. They can guide you through the laws and the process, ensuring you provide the appropriate details to support your claims. If you need the services of an estate guardianship attorney in Texas, reach out to Robbins Estate Law. Our team of attorneys is passionate about all areas of estate law and can provide our legal knowledge and guidance throughout the guardianship process.