THE GUARDIANSHIP APPLICATION
A family member, friend or interested party (the “applicant”) files an Application for Appointment of Permanent Guardian. The application is usually filed in the county where the proposed ward resides. Along with the application, the applicant must provide documentation of a thorough examination performed within the past four months by a physician licensed in Texas. If the proposed ward’s alleged incapacity results from mental retardation, a psychologist certified by the Texas Department of Mental Health and Mental Retardation may provide the medical evidence if the examination was performed within six months before the hearing date. In certain cases, the physician or psychologist may be asked to testify as to the nature and degree of the proposed ward’s incapacity.
The application usually contains the following information:
the name, sex, date of birth, and address of the proposed ward
- the name, relationship and address of the person the applicant desires to have appointed as guardian, and
- the social security number of the proposed ward and of the person the applicant desires to have appointed as guardian if required by that court
- whether guardianship of the person or estate, or both, is sought
- the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitations of rights requested to be included in the court’s order of appointment
- the facts requiring that a guardian be appointed and the interest of the applicant in the appointment
- the nature and description of any kind of guardianship existing for the proposed ward in Texas or in any other state
- the name and address of any person or institution having the care and custody of the proposed ward
- the approximate value and description of the proposed ward’s estate, including any compensation, pension, insurance or allowance to which the proposed ward may be entitled
- the requested term (one year or continuing) of the guardianship, if known
- the name and address of any person holding a power of attorney, if known, and a description of the type of power of attorney
- if the proposed ward is a minor:
- whether the minor was the subject of a legal conservatorship proceeding within the preceding two-year period, and if so, where and what was the disposition; and
- the names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased
- if the proposed ward is 60 years of age or older, the names and addresses, to the best of applicant’s knowledge, of the proposed ward’s spouse, siblings, and children; or if there is no spouse, sibling or child, the names and addresses of the proposed ward’s next of kin
- facts showing that the court has venue over proceeding; and
- if applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of the Texas Probate Code.
The court clerk will issue a citation to be served in person on the proposed ward. If the application is filed in a Statutory Probate Court, the court will appoint a court investigator. The investigator meets with the proposed ward, attorney of record, social workers, family members and any other persons necessary to determine if guardianship is the least restrictive manner in which to handle the case.
The court investigator files a report with the court. This report is made available to the attorney of record. If the application is not withdrawn based on the court investigator’s review and recommendation, an attorney ad litem is appointed to advocate for the alleged incapacitated individual.
The attorney ad litem reviews the report furnished by the court investigator, conducts further investigation, if necessary and meets with the proposed ward. A time and date for a court hearing is set and notice is issued to all interested persons, including the alleged incapacitated individual.
The proposed ward must be at the hearing unless the court determines that a personal appearance is not in the proposed ward’s best interest. The court may close the hearing if the proposed ward or the proposed ward’s counsel requests a closed hearing. The proposed ward is entitled, on request, to a jury trial.
Any person who does not have an adverse interest may contest the guardianship. This includes the alleged incapacitated person. At the hearing, the court inquires into the ability of the alleged incapacitated adult to feed, clothe and shelter himself or herself, to care for his or her own physical health and to manage his or her own property and financial affairs.
Before appointing a guardian, the court must find by clear and convincing evidence that:
- the proposed ward is an incapacitated person
- it is in the best interest of the proposed ward to appoint a guardian; and
- the rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.
The court must find by a preponderance of the evidence that:
- the court has venue or that this court is the proper court to make the determination of necessity of guardianship
- the person to be appointed as guardian is eligible and qualified to serve as guardian
- the guardianship of a minor is not solely to determine or change school districts, and
- the proposed ward is totally incapacitated; or is partially incapacitated, and can perform some, but not all, of the tasks necessary to care for himself or herself and manage the individual’s property.
If the court finds that the adult person possesses the capacity to care for himself or herself, the court dismisses the application.
If the court finds that the person lacks some, but not all, of the ability necessary to care for himself or herself, or to manage his or her property, the court appoints a guardian with limited powers, leaving as many decisions as possible to the incapacitated individual.
If the court finds that the proposed ward is totally without the capacity to care for himself or herself, the court includes a finding of that fact in its final order and appoints a guardian with full authority.
The order contains findings of fact and specifies powers and duties granted to the guardian and any limitations of those powers, the name of the person appointed guardian, the name of the ward, whether the guardianship is of the person or the estate or both, the amount of the bond, whether an appraisal is necessary, and gives directions to the guardian regarding the appraisal of the ward’s assets.
The bond is an insurance policy which protects the assets of the ward should the guardian’s action create financial loss to the estate. The penal amount, or dollar amount, is set by the judge in the amount that is equal to the value of the ward’s personal property plus one year’s income.
When the bond has been approved by the court and the guardian files the oath, the guardian is considered qualified, and Letters of Guardianship are issued by the county clerk.
Letters of Guardianship are evidence of the authority of the guardian to act on behalf of the ward. Letters expire sixteen months after the date of issue. The guardian may renew Letters of Guardianship of the person after he or she files an annual report of the person and the court approves that report. The guardian of the estate may renew letters after the court receives and approves the guardian’s annual accounting. The court may also require that the next year’s bond premium be paid in advance.