The Texas guardianship process resembles the dependent administration of a Decedent's Estate in many ways. The applicant, generally a close relative, files a written pleading requesting appointment as Guardian of the incapacitated Ward's person or estate, or both, in the County Court or Statutory Probate Court of the Ward's residence. Upon receiving the application, the Court immediately appoints an attorney ad litem to represent the interests of the Ward. The attorney ad litem will review the Ward's educational and medical records and attempt to personally interview the Ward to determine his or her wishes regarding the guardianship. If the Ward is an adult, a doctor's report will be required to establish the nature and extent of the incapacity.
After a hearing, the Court may appoint a Guardian of the Person or a Guardian of the Estate, or both, for the benefit of the Ward. A Guardian of the Person is empowered to make decisions concerning the personal welfare of the Ward such as the type of medical treatment that might be provided. In general, the Guardian would be responsible for determining the Ward’s living arrangements and providing for his or her daily care.
When two or more individuals are equally qualified to serve as a Guardian of the Ward, conflicts may arise. If family members of equal stature cannot agree among themselves upon the appointment, the Court may be called upon to decide the issue. A properly executed Designation of Guardian, executed by the Ward prior to becoming incapacitated will often avoid a dispute of this nature.
Persons who may not be qualified to serve as a Guardian include “a person whose conduct is notoriously bad” or “a person who is a party to a lawsuit concerning the welfare of the Ward” or “a person asserting a claim against the Ward” or "a person who, because of inexperience or education is incapable of properly and prudently managing and controlling the Ward or the Ward’s estate," or finally, “a person, institution or corporation found unsuitable by the Court.”
If a Guardian of the Estate is appointed, a general notice to the Ward's creditors is published, and an Inventory, Appraisement, and List of Claims prepared and filed to evidence the nature and extent of the Ward's assets. Generally, a Guardian of the Estate will be required to post a substantial bond to cover the value of the property that is being subjected to administration. The Guardian must also seek approval of a monthly allowance for expenditures to cover the Ward's care and, in many cases, will also be required to seek approval of a plan to invest the Ward's assets. At yearly intervals, the Guardian must also file an annual account and recap the receipts and expenditures affecting the Ward's estate.
The Guardian of the Person or Estate also serves in a fiduciary capacity subject to close Court supervision. Any deviation from the duties of loyalty and disclosure owing to the Ward may result in the removal from office as well as the imposition of personal liability upon the Guardian.
The Texas guardianship process is designed to protect the Ward and the Ward’s estate and does so quite effectively; however, it is complex and often quite expensive. Avoiding this guardianship process is often an objective of a well-prepared estate plan.
Located in Weatherford, TX, probate attorney Gary F. Westenhover is board certified in probate law and estate planning. This firm maintains an active probate litigation practice throughout North Texas, particularly in the following cities and counties:
- Weatherford (Parker County)
- Mineral Wells (Palo Pinto County)
- Jacksboro (Jack County)
- Cleburne (Johnson County)
- Fort Worth (Tarrant County)
- Decatur (Wise County)
- Graham (Young County)
- Stephenville (Erath County