As discussed in Seeking Guardianship Part One: The Application (How to Apply for Guardianship in Texas,) a copy of the application and Healthcare Provider’s Certificate of Medical Examination must be served by constable on the person to be protected by the guardianship and sent (by certified mail, return receipt requested) to certain family members.
Family Members May Have Priority
Although the Texas Estates Code gives some family members priority in applying for guardianship, someone with priority may not want to serve. An elderly spouse or parent may think it wiser for an adult child to apply to become guardian.
Two family members may want to apply. One could apply to be guardian of the person and the other guardian of the estate. But except for transfers in from another state, in Texas, only parents are allowed to be co-guardians. If the parents are divorced, they can become co-guardians only if the divorce decree provides for this. (Even if it does, this rarely works out.) When family members disagree and bring their contest to court, a contest can take two years or more, while the person to be protected has no guardian and each contesting family member spends $30-100,000, sometimes more. In these circumstances, it is hard to believe that either is primarily concerned with the well-being of the person to be protected by a guardianship. No wonder a guardianship contest often results in the Court appointing a third party, often a private professional guardian.
Family Members Must Receive Notice
Some family members may try to resist the person being placed under the protection of a guardianship by refusing to return the Waiver and Election. This only results in delay: they can be served by a constable and the constable’s return filed with the Court.
The Court Protects the Proposed Ward’s Rights
They, and others, may be concerned about the civil rights of the person for whose protection the guardianship is sought. Texas courts are also concerned. Guardianship is a last resort, something which must be as limited as possible, and open to future limitation and termination. Because guardianship removes some of the person’s civil rights, the person must be represented by a Court-appointed Approved Guardianship Attorney. That attorney, on the person’s behalf, can argue against the guardianship or agree to the need for a guardian but argue that the applicant is not qualified or is unsuitable.
Meet the Qualifications to Serve as Guardian
An applicant is not qualified to be a guardian if they are a party to litigation involving the person to be protected by the guardianship, if they owe the person money or that person owes them money, or if they have been found to have abused a child, disabled or elderly person. There are other circumstances which may make an applicant unsuitable.
An applicant for guardian of the estate can live anywhere.
A guardian of the estate is required to visit at least four times per year; twelve is preferred.
This article is part of our Texas Guardianship Process series:
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.
