GUARDIANSHIP

Guardianship is a relationship by which a court takes away the legal rights from a person who has legal incapacity [called the ‘Ward’] and gives those rights to another person [called the ‘Guardian’]. The guardianship relationship is created by the court and is monitored by the court for as long as the disability lasts.

Legal incapacity means that a person is substantially unable to do the following because of a physical or mental condition:

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

In Texas, when an adult is legally incapacitated, guardianship is often sought for such incapacitated adults.

Green card holders can petition for their spouses, unmarried children of any age and parents to immigrate to the US. However unlike US citizens a visa number is not immediately available for relatives of green card holders. There is generally a waiting period for a visa number to become available for qualifying relatives of green card holders because Congress has placed a limit on the number of people who can immigrate every year through these categories. Note that there is no visa category for married children of permanent residents. If you are the unmarried son or daughter of a green card holder and you get married before you become a permanent resident, you no longer qualify for the green card through your family member.

There are two types of guardianship: guardian of the person and guardian of the estate.

A guardian of the person has control over the ward’s personal affairs, such as housing, food, clothing, medical, and educational decisions.

A guardian of the estate has control over the ward’s property and finances.

One person can serve as both a guardian of the person and of the estate.

Disability is not the same as incapacity. A person can have a disability without being legally incapacitated. Incapacity can be either partial or total. If a ward is partially incapacitated, the guardian’s rights over the ward may be limited.

If the proposed ward is minor, a parent can give a power of attorney for nonparent caregiver to act on behalf of the child. If the child has lived with the caregiver full time for more than six months, the caregiver may be able to file for legal custody of the child.

The process starts when the proposed guardian’s attorney files an application for guardianship with the court. A doctor also has to examine the proposed ward and certify that he or she is incapacitated. The proposed ward must be personally served with application, usually by the constable. Other ‘interested persons,’ such as relatives of the proposed ward must also be served or notified about the case.

The court also appoints an attorney to represent the interests of proposed ward [called ‘attorney ad litem’]. Both the court and the attorney ad litem carry out their own investigations on whether or not a guardianship is necessary. The guardian [s] also must register as guardians and undergo background checks to make sure they are fit to serve as guardians. At the end of the process the court conducts a hearing to determine whether guardianship is necessary and if the court is satisfied, it signs an order appointing the guardian.

After the guardian is appointed by the court, they must sign an Oath of Guardianship and post a bond with the court. After posting bond the court clerk issues “Letters of Guardianship” which must be renewed annually. To get new letters, guardians must file an annual report with the court on the state of the guardianship. This annual report is required as long as the guardianship is in existence.

Parents and loved ones of persons with disabilities are often told to get guardianships over their disabled family members. However, what they often don’t realize is that guardianship is a last resort. This is because guardianship is the strongest type of legal authority granted by a court over another person. If you were told by a government agency, a person or a medical provider to get guardianship, the first question you need to ask is why they are asking you to get a guardianship. There may be other avenues by which you can act legally on behalf of your loved one without going through the court process of guardianship.

Under the provisions of the Texas Estates Code, all alternatives to guardianship, supports, and services must be considered and explored before choosing to apply for guardianship. Every attorney appearing in a guardianship case must explore alternatives to guardianship which promote an incapacitated person’s right to control their own property, liberty and life in a way that protects their well being.

The court must be satisfied that all alternatives to guardianship were thoroughly considered before a grant of guardianship. Alternatives to guardianship include the following:

• Supported Decision Making Agreements [SDMAs]
• Medical Powers of Attorney
• Durable Powers of Attorney
• Declaration for Mental Health Treatment
• Appointments of Representative Payee for public benefits
• Establishment of a joint bank account
• Creation of a management trust
• Creation of a special needs trust
• Designation of guardian before need arises
• Establishment of alternate forms of decision-making based on person-centered planning.

Don’t hesitate, call Paul Law Firm PLLC today on 8323214028 for your guardianship case. We will work with you to create the best plan for your loved ones. Call us today

The good news is that there are legal tools and resources designed to safeguard the interests of people with disabilities or special health care needs after they become adults. At Paul Law Firm PLLC we work with families of people with disabilities and special needs to provide the best solution for your loved ones. We recognize that there is no ‘one size fits all’ approach. Contact Paul Law Firm PLLC today to design a plan just for you.

By having the appropriate legal instruments in place, you can ensure that your child’s benefits remain protected, enable better management of their medical care and finances, and empower your child to voice their own needs while you support them in making adult decisions.