To protect a loved one’s personal and financial interests, you may need more than the durable and medical power of attorney. A guardianship of the person and/or estate provides Court authority to act on behalf of a loved one. A Guardianship procedure is a request to declare a loved one incapacitated. In general, you can think of an incapacitated person as one who is unable to handle their medical and financial affairs. Clients pursue guardianship when a loved one has been or is at risk for becoming victimized by fraud, theft, or undue influence. It is common for the Ward (the incapacitated person) to lose the right to drive, vote in public elections, marry, and consent to medical treatment.
ABUSE, NEGLECT, OR EXPLOITATION
If you suspect a loved one or any adult is the victim of abuse, neglect, or exploitation, please contact Adult Protective Services at 1(800) 252-5400 or visit the Department of Family and Protective Services Abuse Report page.
LESS RESTRICTIVE ALTERNATIVES
Before a Court will grant a Guardianship over a proposed ward, all parties must evaluate whether there are any alternatives or support and services that would avoid the need for a Guardianship. It is important to review all of the supports and services available to the Proposed Ward before filing a guardianship with the Court.
APPLYING TO BE A GUARDIAN
After thorough consideration, should you determine there are no less restrictive alternatives and no supports and services available which would avoid the need of a guardianship, the next step is to file an Application for Guardianship. As a proposed guardian, you will be required to have an attorney that has completed the guardianship ad litem certification. Please contact our office to request a consult.
To become a guardian in Texas, you must submit to a background check and complete a training. Your loved one will also need to be evaluated by a doctor so we can obtain a certified medical exam (CME) which will be filed with the Court and used at trial. If the Court appoints you as the guardian, you will be required to post a bond to secure the Ward’s interests. After you become the guardian, you will need to submit annual reports and accountings to the Court. It is essential that you keep very good records of all of your actions as Guardian.
COURT INITIATED GUARDIANSHIPS
If you believe someone is subject to physical abuse, neglect, or financial exploitation, you should contact Adult Protective Services and report your suspicions so that it can be investigated. If you do not want to become the guardian of that person, you may also inform the Court of the individual’s circumstances. In instances of particular need, the Court will initiate an investigation into your loved one’s situation to determine if a Guardianship is required. To request such an investigation, complete the Information Letter located on the Court’s Website. You will also need the Ward’s physician to complete a Physician’s Certificate of Medical Examination. Both documents will need to be submitted to the Court in order for an investigation to be considered.
Under Texas law, if the proposed ward’s incapacity is due to an intellectual or developmental disability, a physician must submit a report commonly referred to as a Determination of Intellectual and Developmental Disability based on an examination conducted within the last 24 months. Please contact the ward’s physician or your local MHMR Office for more information.
The Court initiated Guardianship process is typically sought by Adult Protective Services and other non-family members who are concerned about a proposed ward’s well-being, but who possess critical information to provide to the Court regarding a proposed ward.