The court system has established protocol for managing the care and concerns of individuals who are unable to care for themselves. In the legal system, this is known as guardianship. The specifics of the legal process involved will vary based on the laws of the state where the individual resides. Any dealings with the court system regarding a guardianship will require following specific legal processes. This system is designed to protect the interests of the person needing guardianship.
Guardianship in Texas is given to a court-appointed individual is responsible for the care of a minor, an incapacitated person, or their property.
Who are the parties involved in a guardianship case?
In Texas, the incapacitated individual or minor is referred to as the ward. The person who takes care of the ward is called the guardian of the person.
Texas law has also made provision for the care of property owned by the ward. In that situation, the guardian is known as the guardian of the estate.
Who is eligible for guardianship?
To qualify for guardianship in Texas, the person must be either a minor or an incapacitated individual.
Minor Qualifications
Under Texas’ guardianship laws, a person is considered a minor if they are under the age of 18. In addition, they must not be married nor have had their minor status removed by the court.
Incapacitated Qualifications
A person is identified as incapacitated if they meet the following criteria. They must be over the age of 18. Additionally, they must have a mental or physical condition that restricts their ability to care for themselves. If they are unable to provide shelter, food or clothing for themselves, they are deemed incapacitated and eligible for guardianship.
Who is eligible to be a guardian?
Texas puts priority on family relationships when it comes to guardianship issues. To accomplish this, they award guardianship for minors in a hierarchal order that begins with the parents. In the absence of an eligible parental unit, the guardianship preference would to go a designee provided by the last surviving parent. If there is no designee, the nearest family member to the child after the parents. This individual could be a grandparent, aunt, or uncle. Additional kin would be considered if necessary. If all eligible family members have been ruled out as potential guardians, the court will appoint a non-relative who is deemed appropriate.
Incapacitated adults have a different hierarchy for guardianship, but the preference is still given to family members.  If the ward designated an individual prior to becoming incapacitated, that person is given first priority for guardianship. The order of selection if there is no designated guardian moves to the ward’s spouse, then the next of kin. If there is no family member available, a non-relative is considered.
What is the process for receiving guardianship?
The laws surrounding guardianship in Texas are strict. For this reason, it is recommended that the involved parties hire a qualified family lawyer to guide them through the process.
Unless the party involved is a minor, the person must be proven incapacitated. This is generally done by an examination performed by a doctor that asserts their limitations.
Upon being deemed incapacitated, the party must file a certificate with the courts that begins the guardianship process. This certificate is complex and detailed. Most individuals require the assistance of a lawyer to ensure that it is properly completed. The party must complete the certificate within 120 days of the initial application for guardianship.
The court will appoint an attorney ad litem to the ward during the certification process. This person is responsible to protect the civil rights of the ward and ensure that the guardianship is appropriately awarded.
How long is the guardianship protected?
Once awarded, the guardianship status will be valid for 16 months. The guardian may renew the letters before the term expires to maintain the guardianship.
Is guardianship the same as custody?
Many people confuse the status of guardianship and custody. Both are legal statuses that have different rights and responsibilities for the person seeking rights to a minor or incapacitated person. Guardianship is legal responsibility for specific duties. In Texas, parents can grant guardianship of their minor child to another party through a handwritten document.
A custodial individual assumes full responsibility for care of a minor. While a guardianship relationship may not involve living arrangements, the custodial relationship does. These two terms are different in the legal sense and invoke different legal processes.
How can the Law Offices of Brian Hill help?
Individuals who are involved in the care of either a minor or incapacitated person should seek the assistance of a qualified attorney. They can provide insight into the legal process, inform the individuals of the steps required and ensure that all documentation is filed appropriately.