Because guardianship, in order to protect someone from themselves or others, takes away certain civil rights, guardianship can only be awarded by a Court. A person may have a Declaration of Guardian in Case of Need or Later Incapacity but that only tells the judge whom they prefer and whom they do not want to serve as the guardian of their person or estate. It does not appoint them. A person may agree that they need a guardian, but only the Court can appoint one.
When a Guardianship May Be Necessary
A person is a candidate for the protection of a guardianship if, due to a physical or mental disability, they are unable to manage their financial affairs or unable to provide for their own food, shelter, or medical care. As discussed in a previous post (What is Guardianship?), guardianship can usually be avoided with sufficient supports and services and is not helpful in all situations.
Where it is, it should be limited to what is truly necessary to protect the person. In addition, a person under guardianship always has the right to have some, or all, civil rights restored, further limiting or even terminating the guardianship.
Obtain a Healthcare Provider’s Certificate of Medical Examination
The first step toward seeking guardianship is to have a Healthcare Provider’s Certificate of Medical Examination completed by a physician or by an advance nurse practitioner supervised by a physician. This form must accompany any guardianship application. It assesses and reports whether, from a medical point of view, the person lacks partial or total capacity to manage their own finances or provide for their own food, shelter and medical care. The doctor may make recommendations about the amount of money the person could handle on their own, about whether the person can consent to medication, about where the person can safely live, and about whether (and if so, when) the person should be reassessed.
Choose an Approved Guardianship Attorney
In Texas everyone involved in a guardianship proceeding must be represented by an Approved Guardianship Attorney: extra training is required to become certified to do this work. Seeking guardianship is not a DIY endeavor. It is not even something a regular probate or family law attorney can handle. In many counties the courts keep a list of Approved Guardianship Attorneys who practice there. A statewide list is available on the website of the State Bar of Texas, inputting “Approved Guardianship Attorney” in the search function. The list is by the primary county to which the attorney has presented a Guardianship Certification and, if required, other information showing Approved Guardianship Attorney status. Many Approved Guardianship Attorneys also practice in surrounding or nearby counties.
Complete the Guardianship Application
When a guardianship application is filed, it must be accompanied by a Healthcare Provider’s Certificate of Medical Examination based on an exam no earlier than 120 days before the application is filed. The application must explain why the guardianship is sought and give examples, within the past six months, of incidents which illustrate that the person is unable to manage their finances or provide for their food, shelter and medical care. If the person lives in a facility, the application must note that and a copy of the application and Healthcare Provider’s Certificate of Medical Examination be sent to the facility administrator. These must also be delivered, by constable, to the person whom the applicant would like to protect with a guardianship.
Notify Required Family Members
The application must list and provide the addresses for close family members who must be notified. The Texas Estates Code gives priority to some family members to serve as guardian, if they are qualified and suitable: spouse, parents, adult children. A family member can file an affidavit giving up their priority. The Texas Estates Code also requires that certain family members, typically siblings and adult children, be sent a copy of the application and Healthcare Provider’s Certificate of Medical Examination. They are given an opportunity to waive or require notice of the hearing. They are given an opportunity to waive or require notice if the person, once under guardianship, is hospitalized for more than three days, goes somewhere for more than a week, or is moved to a more restrictive living environment.
Seeking Guardianship Part 1: Applying – How to Apply for Guardianship in Texas
Seeking Guardianship Part 2: Who Should Apply – Who Can Be a Guardian in Texas?
Seeking Guardianship Part 3: After the Application – What Happens After You File for Guardianship in Texas?
Elder law attorney, Terry Garrett, CELA, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
