Simple estate planning, including the preparation of powers of attorney, are the easiest way to avoid a court ordered guardianship. Unfortunately most persons do not plan ahead and find themselves in the difficult situation of needing to care for their loved ones without having the legal authority to act on their behalf. When this occurs, the only option is to seek the court’s appointment of a guardian who can take care of the incapacitated adult’s financial responsibilities (known as guardianship of the estate) and/or health care decisions (known as guardianship of the person.)

           To initiate a guardianship, an Application for Guardianship must be file with the local probate or county court. Unless the proposed ward’s family is willing to sign Waivers and Renunciations of Right, it will be necessary for the next of kin to be served a copy of the Application by a process server. The Texas Probate Code also requires the applicant for guardianship to prove incapacity by filing a report from a licensed physician, usually the proposed ward’s family doctor. The report must document the nature and degree of the incapacity, the proposed ward’s medical history as it relates to the incapacity, a prognosis of the incapacity, and finally, how and in what manner the physical or mental health of the proposed ward affects his or her ability to make or communicate responsible decisions.

           As a further safety net, the court will appoint an “ad litem,” an attorney to represent the proposed ward ( as opposed to the attorney who represents the applicant) who will make an independent assessment and report directly to the judge. A bond is almost always required to ensure the proper handing of the ward’s money, and the guardian must file annual reports/accountings to keep the court informed for as long as the guardianship is needed.

           Should you have any questions or concerns about acquiring a guardianship or how to avoid a guardianship, please contact an attorney of your choice.