Deciding whether to apply for guardianship over a loved one is a difficult choice, especially when the need arises due to age or injury. Because guardianships significantly restrict the proposed ward’s rights, they are subject to extensive legal oversight.

To minimize the difficulties you experience, a minor and adult guardianship attorney is essential. Our team of passionate minor and adult guardianship attorneys at Robbins Estate Law is ready to help.

What Is a Guardianship?

Through a guardianship, one person—the guardian—gains the legal authority to make decisions on behalf of another—the ward. Guardianships are a last resort for people who cannot get the care they need through other means. Before a guardian is appointed, a probate court must conclude it is necessary to protect the ward and promote their interests.

Types of Guardianships

Texas has two types of guardianship: guardianship of the person and the estate. You may request one, the other, or a combination of the two.

A guardian of the person controls the ward’s personal affairs, like housing, healthcare, and food. A guardian of the estate controls the ward’s financial affairs, like buying or selling property, making investments, and entering into contracts.

Additionally, guardianships may be limited or full. A limited guardianship authorizes the guardian to exercise some powers of a guardian. In contrast, a full guardianship authorizes the guardian to exercise most, if not all, of the powers of a guardian.

Guardianships vs. Conservatorships

Many states use the terms “guardianship” and “conservatorship” interchangeably. In Texas, however, conservatorships establish physical and legal custody of a minor, while guardianships usually apply to adult wards.

Guardianship of Adults

You can only establish guardianship over an adult who is fully or partially incapacitated. The proposed guardian must submit a thorough application explaining what powers they need and why the guardianship is necessary.

Incapacitation

A person is incapacitated for guardianship purposes when they are substantially unable to:

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

Incapacitation may result from a physical or mental condition like:

  • Developmental disabilities,
  • Severe mental illnesses,
  • Dementia,
  • Brain injuries, and
  • Severe substance use disorders.

These conditions, like guardianships, may be temporary or permanent. 

Application Requirements

Requesting a court appoint you as a guardian requires an extensive and detailed application. Among other details, you must explain:

  • The type of guardianship (full, limited, estate, and person),
  • How the proposed ward is incapacitated,
  • What alternatives to guardianship have been considered and why they are infeasible, and
  • Why you are requesting an appointment.

To the best of your ability, you must also provide contact information for the proposed ward’s parents, siblings, and children. 

You must also provide expert medical documentation of the ward’s condition. If the incapacity results from a physical condition, the expert must be a physician. If the incapacity results from a mental condition, the expert may be a physician or a psychologist. The expert must evaluate the proposed ward’s condition and address how and in what ways the ward is incapacitated.

Guardianship of Minors

Legally, minors are incapacitated. However, guardianships over minors are rare in Texas. A conservator is typically appointed except in limited circumstances.

Death or Incapacity of Both Parents

Courts may appoint a guardian for a minor if the minor is orphaned or their parents become incapacitated. If the last surviving parent designates someone to act as guardian, the court will generally honor that appointment. If the parent does not designate a guardian, the court typically appoints “the nearest ascendant” in the minor’s “direct line.” An “ascendant” is the opposite of a descendant. So, an ascendant in a direct line is a grandparent or great-grandparent. If no direct ascendants are willing or able to serve, the court generally appoints the minor’s nearest kin. This may be an adult sibling, an aunt or uncle, or a relative of a similar degree.

The Minor Will Need a Guardian as an Adult

You may also request guardianship within 180 days of a minor’s 18th birthday if they need a guardian once they turn 18. In limited circumstances, the court may appoint the minor’s conservator as their guardian without a hearing as long as they submit a medical report. Otherwise, the proposed guardian follows the usual guardianship application requirements.

Hearings

Generally, when a proposed ward applies for guardianship, the court schedules a hearing. The proposed ward may contest the appointment. Because a guardianship restricts the ward’s legal rights, they get special protections, like the right to:

  • Request a jury trial,
  • Court appointment of a guardian ad litem, 
  • Representation by a lawyer, and
  • Court appointment of an attorney ad litem. 

At the hearing, the proposed guardian and the proposed ward present evidence supporting or opposing the guardianship. When the hearing ends, the judge (or jury) determines whether the guardianship is necessary. 

Serving as Guardian

Before the guardian can exercise their powers, they must qualify to serve by:

  • Take or file an oath or declaration to faithfully discharge their duties,
  • Pay a bond,
  • Obtain the judge’s approval of the bond, and
  • File the bond with the court.

Once the proposed guardian qualifies, the court issues letters of guardianship to make the guardianship official. The guardian typically must file a guardianship report every year the guardianship continues, which the court reviews.

Terminating or Modifying a Guardianship

Temporary guardianships generally establish an expected end date or condition. To terminate the guardianship, you follow those terms.

Wards, guardians, and other interested people may request that the court terminate or modify a guardianship. Modification may involve restoring some of the ward’s rights, like turning a full guardianship into a limited one. It may also involve giving the guardian additional powers, like turning a guardianship of the person or estate into a guardianship for both. You may also request that the guardian be removed and replaced.

The court may terminate a no longer necessary guardianship. The court will generally hold a hearing at which the parties may present their reasons and evidence to support continuing or ending the guardianship.

How Can a Minor and Adult Guardianship Lawyer Help?

For better or worse, we only scratch the surface of guardianship law in Texas above. If you need assistance establishing, modifying, defending against, or terminating a guardianship, contact Robbins Estate Law. You can speak with an experienced minor and adult guardianship attorney and learn more about the options available in your unique circumstances.