What happens when a loved one becomes incapacitated? Who makes the decisions? What kinds of decisions can that person make? How will the loved one be cared for and to what extent?
One option in this situation is to institute a guardianship proceeding. If a court determines that the loved one is truly incapacitated, it can appoint a guardian-either a family member or a professional-to have either full or limited authority to make decisions on behalf of that person and/or his or her estate.
In general, anyone who does not have an adverse interest to the incapacitated person-who is called the ward-may be appointed as a guardian. Certain individuals have priority over others, and there are also some people that are prohibited from serving as guardians.
In Texas, if a ward is married, his or her spouse has priority over all others to serve as guardian. If a ward is not married or his or her spouse is dead or unable or declines to function as a guardian, then a next of kin can be assigned. If there is more than one person with the same level of kinship, the court will chose the most qualified one to serve.
If there are no family members or if they do not want to serve as a guardian, the court can assign a disinterested individual, financial institution or guardianship service.
There are two types of guardianships: guardianship over the estate and guardianship over the person. Guardianship of the estate includes the ward's finances and the ward's property. The guardianship of the person involves the custody and care of the ward.
A guardian of the estate must manage the ward's estate as a prudent person would, and a guardian of the person must protect the well-being of the ward. Generally, a guardian needs a court order to take action on behalf of the ward except in a few limited instances, such as insuring property and paying taxes.
All adult guardianships are brought in the county where the ward resides when the application is filed or the county where the ward’s principal estate is located. The Statutory Probate Court has jurisdiction over guardianship matters. In counties without a Statutory Probate Court, the county court has jurisdiction over the matter.
A guardianship proceeding is initiated by the filing of an application for guardianship. The court in which the application is filed will have jurisdiction over the entire matter, including any disputes over rights to property.
The person seeking guardianship and the ward participate in the proceeding. An attorney ad litem is appointed to represent the best interests of the ward. The court may also appoint a court investigator.
The court must find:
After the guardian is appointed, the guardian must file an oath of office and swear that he or she will faithfully execute the assigned duties. The court will also set a bond in most cases.
If you are considering initiating a guardianship proceeding for an incapacitated loved one, it is wise to contact an experienced guardianship attorney who can help you through the application process.
The Law Firm of Laura Coorpender Ramirez, PLLC, in Lake Dallas, Texas, represents clients throughout the Dallas-Fort Worth area, including the cities of Denton, Lewisville, Highland Village, the Colony, Carrollton, Copper Canyon, Ponder, Double Oak, Flower Mound, Argyle, Bartonville, Frisco, Plano, Hickory Creek, Sanger, Shady Shores and Corinth.