Houston Attorney for Guardianship Proceedings
Estate Planning & Probate Lawyers Serving Texas
Our legal system has recognized the need to protect the rights and interests of people who can’t do so on their own, which is why Texas has laws regarding Guardianship. A legal process intended to protect vulnerable individuals from exploitation, neglect, abuse, and other adversities, guardianship proceedings have two general components:
- Taking away the legal rights of a “vulnerable” individual (known as a ward); and
- Bestowing the ward’s legal rights upon another person (the guardian).
If you are considering seeking guardianship, or would like more information about how it works and what options you may have for your situation, our estate planning and probate team at Hendershot, Cannon & Hisey, P.C. are available to help.
Call (713) 909-7323 or contact us online to speak with a lawyer.
Guardianship in Texas: How it Works
In Texas, the guardianship process is overseen by the Probate Court. How it works in your situation depends on the unique facts of your case, but generally entails a few basic concepts and arrangements:
Purpose: Incapacity vs. Disability
Legal guardianship in Texas is nearly always sought for the purpose of caring for an incapacitated adult, though it can also be sought for minors in some cases. Per statutory definitions, incapacity means a person, due to a mental or physical condition, is substantially unable to:
- Provide for their own basic needs (i.e. food, shelter, clothing); or
- Care for their own physical / financial well-being.
These situations are common among elderly adults in frail and vulnerable states of health, as well as for adults with mental or physical disabilities which hinder their ability to care for themselves. However, the law makes an important distinction: incapacity and disability are not one and the same.
A person may have a disability without being incapacitated, such as when a person has partial hearing loss which, although difficult for their daily life, does not render them unable to support themselves. Incapacity, on the other hand, does mean an inability to care for oneself – whether it is partial or total. If incapacity is partial, a guardian’s rights over the ward can be limited.
Types of Guardianship
Texas law allows for two general types of guardianship: guardian of a person, and guardian of an estate:
- Guardian of the Person – Guardianship as it relates to “the person” means the guardian has the legal right to control the ward’s personal affairs, including decisions related to their health care and education, as other welfare-related decisions over things like clothing, food, etc.
- Guardian of the Estate – When a person is awarded guardianship of the estate, it means they have control over the ward’s finances and property. Guardians of the estate have the legal obligation (fiduciary duty) to protect, preserve, and maintain the ward’s assets
Guardianship may be granted solely for the person, solely for the estate, or for both guardianship of the person and the state.
Guardianships are unusual legal relationships, and they can make for complex proceedings. By working with experienced attorneys, you can obtain the guidance and support to navigate all aspects of the Texas guardianship process, including:
- Applications seeking appointment as Guardian with the Texas Probate Court, which must include physician letters which certify the ward’s incapacity;
- Appointment of an attorney ad litem, who represents the interests of the war during the proceedings;
- Guardianship hearings before the Court, where ad litem attorneys may contest the guardianship on behalf of the ward (if it’s not in their best interests), or the Court appoints the guardian and sets a bond amount.
- Proof of qualification, which means an appointed guardian must demonstrate that they qualify as guardian, take an oath, and post bond (typically a small fee for a guardian of the person, and a larger fee for a guardian of the estate).
- Post-qualification requirements, which are limited for a guardian of the person (aside from the filing of an annual report about the Ward), and more cumbersome for a guardian of the estate. After being appointed, for example, a guardian of the estate must file an inventory of assets with the court, a monthly allowance application for expenditures, and an investment plan, in addition to publishing a notice to creditors in a local paper, paying the Ward’s taxes, and providing an annual account of the Ward’s estate.
Because there are many hurdles in the process, and because awarding control of person’s rights to another is a major decision, legal representation when seeking guardianship is crucial.
Experienced Probate Attorneys Providing Comprehensive Representation
At Hendershot, Cannon & Hisey, P.C., our legal team has the experience to assist clients in navigating the guardianship process, both for an incapacitated adult or a minor. We also have the experience to help clients explore potential alternatives to guardianship, such as Power of Attorney, and can assist with various family law matters when minor children are involved.
If you have questions or would like to speak with a Houston attorney about your particular guardianship or probate matter, call (713) 909-7323.