FAQ For Guardianship
Q: What is guardianship?
A: 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 asa “Ward,” who does not have the mental or physical capacity to manage his or her own interests.
Q: When should I seek a guardianship for my child, spouse or parent?
A: Any of these situations can lead to circumstances requiring a guardianship:
- When a disabled child reaches the age of majority, 18 years old because their parents by law are no longer the legal guardian.
- 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.
Q: What is the first step in attempting to gain guardianship over a minor child or an incapacitated adult?
A: 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.
Q: Who can become a guardian of a minor child or an incapacitated adult?
A: 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.
Q: Are there different types of guardianship?
A: Yes, there are two different types of guardianships. A Guardian of the Estate manages theWard’s property and assets. A Guardian of the Person is responsible for the Ward’s personal,medical and welfare decisions. A individual can be appointed both Guardian of the Person andEstate for a Ward.
Q: Will anyone be representing the minor child or incapacitated adult’s interests?
A: Yes, the Court will appoint an Attorney Ad Litem to represent the minor child orincapacitated adult. The Attorney Ad Litem will usually visit them in order to gain a fullunderstanding of the proposed Ward’s situation and needs.
Q: Are all of the Ward’s rights removed?
A: 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
- Consent to medical treatment
- Manage, buy, or sell property
- Determine residence
- Make end of life decisions