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If no alternatives work, even with supports and services, it may be necessary for someone to be placed under a guardianship.

There are two types of guardianship.

Guardianship of the Person

Guardianship of the person may allow the guardian to decide where the person lives or works, who they marry, and to apply for a mental health detention (with immediate notice to the probate court.) It usually preserves the right to vote but not the right to carry a gun. This form of guardianship is often sought when a person with an intellectual or developmental disability turns 18 or when a person with dementia refuses to stay in a memory care facility or nursing home. A Medical Power of Attorney does not allow the agent to determine where the person lives: a guardianship of the person does. A small bond is required.

Guardianship of the Estate

Guardianship of the estate (also called, “conservatorship”) may be needed when the person has more than Social Security in income or a lot of assets but can no longer manage their finances and does not have an agent under a Durable Power of Attorney or has an untrustworthy agent. If the person only receives Supplemental Security income, someone may be appointed their representative payee, avoiding the expense and trouble of guardianship. A bond is required based on the person’s yearly income and total assets. Every year a guardian of the estate must present a sworn accounting, complete with receipts.

Guardianship Attorney

If the person does need a guardian, the application must be brought by an Approved Guardianship Attorney. Some probate and county courts have lists. There is also a list on the State Bar of Texas website. While an Approved Guardianship Attorney may only be registered in one county, many practice in surrounding counties as well.

Guardianship Process

Every guardianship application must be accompanied by a Physician’s Certificate of Medical Examination. This should be completed by a neurologist or psychiatrist or by the person’s long-time general practitioner. If the person will not agree to see a doctor, the Approved Guardianship Attorney can apply for an Independent Medical Examination.

If you do not want to be the guardian but think that a guardian is needed, you can ask the probate court to look into the matter by sending a Court-Initiated Guardianship Information Letter.

You can download a copy of both the Physician’s Certificate of Medical Examination and the Court-Initiated Guardianship Information Letter on our Resources for the Legal Guardianship Process page.

Estate Planning attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. 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.

She assists families of people with special needs, people planning for the retirement years and people administering estates.

 

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