Guardianships

Guardianships

For all of your child's life, you've been there to guide, protect, and make decisions. When your child with special needs approaches the age of eighteen, there is one more decision to make: will he or she need a legal guardian in adulthood?

What is a Guardianship, and Who Needs a Guardian?

A guardianship is a legal relationship created by the probate court, in which one party (the ward) is incapacitated and has some legal rights taken away and given to the other party (the guardian). The guardian is obligated to exercise those rights in the best interest of the ward. 

According to the Texas Probate Code, "the court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person." "Incapacity" may be legal or practical in nature. A minor child without parents, for example, needs a guardian because he is legally unable to make decisions for himself. A disabled adult may need a guardian for practical reasons, such as the inability to understand and manage financial needs or to make medical decisions. Incapacity may be full or partial; a person may be able to manage some aspects of self-care and decision-making, but not others.

The bottom line is, if you have concerns about your disabled child's ability to make important life decisions and care for him- or herself after turning eighteen, you should explore the possibility of some form of guardianship. A guardianship may be necessary for an adult child with a disability, but there may be other, less restrictive options that will be adequate to protect your child's interests, such as a power of attorney. At Turkett Law Office, PLLC, we can explain the options that may be available in your circumstances.

The Guardianship Process in Texas

The guardianship process begins with filing an application in the probate court of the county in which the proposed ward lives. Notice of the application must be provided to the proposed ward, the proposed ward's parents, the proposed guardian, and if applicable, the proposed ward's spouse and any person actually caring for or having control of the proposed ward. You cannot file an application more than 180 days before the proposed ward's eighteenth birthday, and if the hearing is before the proposed ward turns 18, the guardianship does not take effect until the ward is 18 years old. 

Because a guardianship case is filed on behalf of another person, and because non-lawyers cannot represent other people in court, you will need an attorney to file the application for guardianship and to represent you as a proposed guardian. 

The proposed ward will have representation, too. The court will appoint an attorney to represent the proposed ward's wishes, and may appoint a guardian ad litem, to advocate for what he or she believes is in the proposed ward's best interests, even if that conflicts with what the proposed ward wants.

A guardianship is a serious matter, as it deprives a ward of certain essential rights. As such, evidence must be presented to demonstrate incapacity, including a medical evidence letter signed by a medical doctor and dated within 120 days before the application was filed. This letter must be based on an examination by that doctor within 120 days before the medical evidence letter was signed. The evidence of incapacity must be based on recent recurring acts or events, not merely isolated instances of bad judgment.  

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 appointment of a guardian will serve to protect the rights of the ward, or the ward's property.

The guardianship process is designed to protect the ward without unnecessarily depriving him or her of rights. Therefore, the process is painstaking and deliberate, and can be costly. It makes sense to consult with a knowledgeable attorney who can advise you, based on your specific situation, if pursuing a guardianship is the best option. 

As the parent of children with special needs, Steve Turkett understands your circumstances on both a personal and professional level. If you have questions or concerns about pursuing guardianship of your soon-to-be-adult child, Turkett Law Office, PLLC can help. For a consultation and to learn more, call Turkett Law Office, PLLC at (817) 769-2750 or e-mail info@turkettlaw.com.

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Turkett Law Office, PLLC
9500 Ray White Road
Suite 200
Fort Worth, Texas 76244
Phone: (817) 769-2750
Fax: (817) 769-2752