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Terri Green Law Blog
There are many reasons someone may need to file for guardianship of another person. It could be that a child’s parents become unable to care for him, and family members step in to legally care for the child. Or, a parent or adult sibling becomes a legal guardian of a person with disabilities. Commonly, an adult child, grandchild or friend becomes a guardian for an elderly person who can no longer make their own medical or financial decisions. But how does the legal process work? First, the person who wants to become a guardian must file an Application to be appointed Guardian of the Person or Estate or both in the county where the person they want to represent lives. This involves filling out a number of forms and providing a doctor's letter, and filing them along with a fee in the Probate Court. In Texas, prospective guardians are legally required to hire an attorney for this process. Second, a court investigator, Guardian and/or Attorney Ad Litem are appointed by the Judge to interview the proposed ward if possible. The individuals appointed are to investigate the situation of both the guardian and the ward objectively, ensure the safety and well-being of the of the ward, and give their opinion to the judge to confirm if a guardianship is warranted. The Courts will look for the "least restrictive alternative" when reviewing a guardianship application. Those appointed are required to meet with you in your home and talk to you about your relationship to the ward and why you want to perform the duties of guardianship. Third, there will be court hearing. At this hearing, the Judge will listen to your requests, review the doctor's letter and other evidence and talk to the ward if they are able to communicate before he makes his decision about your guardianship. If the Court grants the Application and appoints you both Guardian of the Person and Estate you will have to file an annual accounting with the Court regarding the income and expenses of the Ward and a letter discussing the well-being of the Ward every year. Although the process may be intimidating, guardianship is necessary to ensure a person who can no longer make medical and/or financial decisions for themselves is completely protected under the law.
For any parent, watching their children take on more responsibilities and become adults is a bittersweet journey. If your child is disabled or has special needs, which can be either a physical and/or mental incapacity, that journey may also come with unique anxiety and difficult decisions about their future. When is a legal guardianship appropriate for a minor that is turning 18 years of age and entering into adulthood? A guardianship is designed to extend the legal power and responsibility a parent has over their minor child into adulthood, if that child is deemed incapable and unable to take care of themselves on a daily basis and/or manage their financial affairs. It can entail making the child’s legal and medical decisions, their financial decisions, or both. Guardianship is not always the right choice as It removes certain rights that your child otherwise would have, including the right to determine where they live, work, go to church and even the ability to drive or vote. Court's look for the "least restrictive alternative" when faced with a guardianship application. It is also important to plan for the future. If something were to happen to you, your child would be left without a guardian and without any experience in making life choices. On the other hand, for many children with disabilities, a guardianship is the only logical option. It can be used to protect your child from people who might try to prey on their disability for financial gain. It can also prevent your child from getting into a negative or dangerous situation by providing an environment in which they have grown accustom to living. If you are considering a guardianship of either the person and estate or both for your child, the best plan of action is to meet with a qualified attorney who handles guardianships to discuss your options well before your child turns eighteen. A reputable lawyer will give you valuable insight into the process and your specific circumstances as you will be required to provide a doctor's letter as well, which outlines the diagnosis and prognosis of the child. Each case is different, and each legal guardianship may be set up differently. It is important to get the advice of an attorney that you can trust who is proficient in establishing guardianships and the rules and procedures that appointed guardians must follow.