Request a Consultation
Guardianships for Minors and Incapacitated Individuals: The Process
Whether you are seeking guardianship over someone or you are a parent wanting to name guardians for your minor children, we can help. Our attorneys have handled many guardianship cases and can assist when the time comes to implement a guardianship.
A guardianship is a court ordered, court supervised position, unlike a power of attorney. To become a guardian, someone must file an application with the court explaining why a guardianship is being requested. The incapacitated person must be served with notice that the guardianship case has been filed, and an attorney will be appointed by the court to represent the interests of the incapacitated person. A hearing is set and the court hears the facts of the case and either orders or denies a guardianship.
In Texas, there are two types of guardianship:
1. Guardian of the Person
The Guardian of the Person is responsible for taking care of the medical and personal needs of the incapacitated person. Where the incapacitated person lives, what doctors he or she sees, what medicines and therapy he or she receives, and where he or she lives. Every year the Guardian of the person provides a pesonal account to the court of how the incapacitated person is doing in order for the Guardianship to be renewed.
2. Guardian of the Estate
The Guardian of the Estate is responsible for handling the estate and property of the incapacitated person. If there is cash in a bank account, real estate or personal property, the Guardian must account for it to the court. At the time of the hearing to appoint the Guardian, the court will set a bond that will act to insure or protect the property for which the Guardian will be responsible. For example, if the Guardian were going to be in charge of taking over and managing $100,000 in bank accounts and investments, the court would likely issue at least a $100,000 bond to protect from any loss or misuse of that property. A Guardian of the Estate has a monthly allowance to expend on the incapacitated person’s behalf, but if they need to spend more than that monthly amount at any given time, they must go back to the Court for approval. Every year, the Guardian must file an accounting with the court in order for the Guardianship to be renewed.
One person can serve as both types of guardian or different people can serve in each position. An incapacitated person may not need both types of guardianships, so speak with one of our attorneys to determine what to do next.