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Procedures for appointing a guardian in Texas

Posted by Chris Peterson | Jun 12, 2012 | 0 Comments

Procedures for appointing a guardian in Texas

In Texas, a court can appoint a guardian for a person who is incapacitated. An incapacitated person is an adult who, because of a mental or physical condition, is unable to provide for his or her basic needs, care for his or her health, or manage his or her financial affairs. An unmarried, unemancipated minor is also considered to be incapacitated.

The court must follow certain procedures in appointing a guardian to ensure that the proposed ward's rights are protected. These procedures can be complicated, especially if the guardianship is contested. Whether you are exploring the possibility of a guardianship for a vulnerable loved one or contesting a guardianship for yourself or a family member that you believe is unnecessary, a Bryan guardianship lawyer can provide valuable assistance.

Here is an overview of the basic procedures that the court will follow in appointing a guardian.

Evidence of incapacity. Before appointing a guardian, the court requires clear and convincing evidence that the proposed ward is incapacitated. If the proposed ward is a minor, providing clear and convincing evidence of the necessity of a guardian can be accomplished by supplying the court with the minor's birth certificate and evidence of a lack of a caretaker. If the proposed ward is incapacitated due to a mental or physical condition, the court will need a certificate from a doctor who has had the opportunity to examine the individual. This doctor must be licensed to practice medicine in the state of Texas. In addition, this certificate must be recent, and the examination must occur within 120 days of the date the application for a guardianship is filed with the court.

The application. The Application for Appointment of a Permanent Guardian will ask for information about the proposed ward including the ward's contact information and the relationship between the individual who wishes to be appointed as guardian and the ward. The application will also ask the applicant to describe why he or she believes the proposed ward is incapacitated. Usually, a family member or friend completes this application, and files it in the county of the proposed ward's residence.

Appointment of attorney ad litem. After the court receives the application, the court will appoint an attorney ad litem to represent the proposed ward's interests. It is the attorney ad litem's job to meet with the proposed ward and review any documents that have been filed with the court to determine what is in the proposed ward's best interest. In addition, the court will provide notice to the ward of the pending guardianship application. The proposed ward will be able to challenge the proposed guardianship at the hearing.

Hearing. If the ward's incapacity is clear and the guardianship is not contested, the court will hold a hearing at which it will appoint the guardian and set the amount of the guardian's bond. The proposed guardian will be required to attend. When the proposed ward, a family member, the attorney ad litem, or other party contests the ward's incapacity, the case can become very complex and may require a trial.

Qualification. After appointment, the guardian must qualify by taking an oath and posting the required bond.

Assistance with guardianships and related matters

The experienced College Station guardianship lawyers at the Peterson Law Group can assist you with guardianship alternatives, guardianship applications, and contesting the appointment of a guardian. We can also bring breach of fiduciary duty claims against guardians who have mismanaged a ward's estate and defend guardians accused of misappropriation of funds. Phone 979-703-7014 to schedule your initial consultation.

About the Author

Chris Peterson

Founding Attorney Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. In addition to the law practice, Chris is involved in Aggieland Title Company and Brazos 1...

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