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What is the first step in attempting to gain guardianship over a minor child or an incapacitated adult?
In order to begin the guardianship process, the proposed Guardian, usually the parents of a minor child or family members of elderly persons, must file an application with the court stating their request for appointment. With this application, a letter from the proposed Ward’s doctor or psychiatrist must also be filed to verify that the proposed Ward is, in fact, incapacitated.
What is Guardianship?
Guardianship is the legal process for appointing a person to protect and care for a person and property, such as a child with special needs, or an incapacitated adult, often referred to as a “Ward,” who does not have the mental or physical capacity to manage his or her own interests.
When should I seek a guardianship for my child, spouse or parent?
Any of these situations can lead to circumstances requiring a guardianship:
- When a disabled child reaches the age of maturity, 18 years old, because their parents by law are no longer their legal guardians.
- When a minor child inherits, or is awarded money or property in Texas. A minor is presumed incapable of managing finances, but the law does not automatically provide that the minor’s parents can manage the inherited money or property. In this instance, a court has to appoint a Guardian of the child’s estate (finances).
- When an elderly person who has been affected by a condition that leaves them mentally or physically unable to:
- Feed, clothe or shelter themselves;
- Care for their individual physical health; or
- Manage their personal financial affairs.
Who can become a Guardian of a minor child or an incapacitated adult?
The best choice is a person who is acceptable to the proposed Ward and who sincerely and unselfishly cares for the person with a disability. In addition, the Guardian should live near that person so that the Guardian can be active in his or her care, treatment, and training.
Are there different types of guardianship?
Yes, there are two different types of guardianships. A Guardian of the Estate manages the Ward’s property and assets. A Guardian of the Person is responsible for the Ward’s personal, medical and welfare decisions. An individual can be appointed both Guardian of the Person and Estate for a Ward.
Will anyone be representing the minor child or incapacitated adult’s interests?
Yes, the court will appoint an Attorney Ad Litem to represent the minor child or incapacitated adult. The Attorney Ad Litem will usually visit them in order to gain a full understanding of the proposed Ward’s situation and needs.
Are all of the Ward’s rights removed?
No, the only rights that will be removed are those the court deems the proposed Ward is unable to handle on their own. These rights may include the right to:
- Operate a vehicle
- Vote
- Consent to medical treatment
- Manage, buy, or sell property
- Determine residence
- Marry
- Make end of life decisions
