The purpose of a guardianship is to promote and protect the well-being of an incapacitated person. An "incapacitated person" is a person who, because of a physical or mental condition, is substantially unable to: (1) provide food, clothing, or shelter for himself or herself; (2) care for their own physical health; or (3) manage their own financial affairs. The guardianship may be "of the person" or over the person's estate.
The person whose capacity the court is considering for guardianship is referred to as the "proposed ward." In reviewing the proposed ward's alleged incapacity, the court considers events that occurred in the preceding six months and not just isolated instances of negligence or bad judgment.
The court decides what particular powers to give the guardian. The court attempts to encourage the ward's development and the maintenance of maximum self-reliance and independence.
Alternatives to GuardianshipThere are many alternatives to guardianship, including:
(1) A medical power of attorney;
(2) Appointment of an attorney in fact or agent under a durable power of attorney;
(3) Execution of a declaration for mental health treatment;
(4) Appointment of a representative payee to manage public benefits;
(5) Establishment of a joint bank account;
(6) Creation of a management trust;
(7) Creation of a special needs trust;
(8) Designation of a guardian before the need arises; and
(9) Establishment of alternate forms of decision making based on "person-centered planning."
There may be advantages and disadvantages for these alternatives, depending on the proposed ward's situation. It is important to consult with a skilled lawyer when making decisions regarding guardianship and the alternatives. I have successfully completed a course of study in guardianship law and am currently certified by the State Bar of Texas to serve in court appointments.
Physician's LetterUnless the guardianship is necessary just to receive funds from a governmental source, the court may not grant an application to create a guardianship unless the applicant presents to the court a written letter or certificate from a licensed Texas physician.
The letter or certificate must describe the nature, degree, and severity of the alleged incapacity, including any functional deficits regarding the alleged ability to:
(1) handle business and managerial matters;
(2) manage financial matters;
(3) operate a motor vehicle;
(4) make personal decisions regarding residence, voting, and marriage; and
(5) consent to medical, dental, psychological, or psychiatric treatment;
The physician's letter and examination must be dated within 120 days before the application is filed.
Attorney Ad LitemIn guardianship proceedings, the court will appoint an "attorney ad litem," a person whose job is to represent and advocate on behalf of the proposed ward. The proposed ward in a contested guardianship proceeding is entitled to a jury trial on request.
Guardian Ad LitemIn guardianship proceedings, the court may appoint a "guardian ad litem," a person whose job is to protect and represent the best interests of the proposed ward.
Court VisitorBefore appointing a guardian, the court may also appoint a "court visitor" to evaluate the proposed ward and provide a written report describing:
(1) The nature and degree of the alleged incapacity and a description of medical history;
(2) A medical prognosis and list of the treating physicians, when appropriate;
(3) A description of living conditions and circumstances;
(4) A description of social, intellectual, physical, and educational conditions;
(5) A statement that the court visitor has personally visited or observed the ward or proposed ward;
(6) A statement of the date of the most recent visit by a court-appointed guardian;
(7) A recommendation as to any modification needed in the proposed guardianship, including removal or denial of the guardianship; and
(8) Any other information required by the court.
Trial ProceedingsBefore appointing a guardian for a proposed ward, the court must find by clear and convincing evidence that:
(1) the proposed ward is an incapacitated person;
(2) it is in the proposed ward's best interest to have the court appoint a person as the proposed ward's guardian;
(3) the proposed ward's rights or property will be protected by the appointment of a guardian;
(4) alternatives to guardianship that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible; and
(5) supports and services available to the proposed ward that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible.
The court must also find that the person to be appointed guardian is proper or eligible to act as guardian.