How Guardianships Are Established and Challenged in Court
Guardianship is a court-supervised legal arrangement in which a judge appoints someone to make certain decisions for another who is incapacitated or unable to make decisions for themselves. Texas court may appoint a guardian of the person, a guardian of the estate, or both, depending on the individual's needs and the rights that require protection.
Seeking guardianship for a loved one can be difficult, particularly when you're concerned about their safety, care, or ability to manage their affairs. Challenging a guardianship can be equally difficult when you believe it is unnecessary or that the proposed arrangement goes beyond what the person needs. Understanding how Texas courts establish and review guardianships can help you better understand your options.
At Tefera Law Firm, PLLC, located in Colleyville, Texas, we help families with guardianship matters, including establishing guardianships, challenging proposed guardianships, seeking modifications, and addressing concerns involving existing guardianships. Our goal is to help you understand your options and advocate for your interests in court. Contact us to schedule a free 30-minute phone consultation.
How Is Guardianship Established?
Establishing guardianship requires more than showing that a loved one needs help. The court must evaluate your loved one's circumstances, consider whether guardianship is necessary, and determine what rights and powers, if any, to transfer to a guardian. The primary steps to establish guardianship include:
File an application: You must file an application for guardianship with the appropriate court. The application must identify the proposed ward and proposed guardian and provide information about the type of guardianship being requested and the alleged incapacity. Texas generally requires a guardianship applicant to be represented by an attorney.
Consider less restrictive alternatives: Guardianship can significantly affect your loved one's legal rights, so Texas courts must consider whether supports and services, or a less restrictive alternative, can address their needs. Depending on the circumstances, alternatives may include supported decision-making agreements, powers of attorney, or other arrangements that allow your loved one to retain greater control over their affairs.
Obtain medical evidence: The courts will consider evidence regarding the proposed ward's condition and their ability to care for themselves or manage their affairs. In many adult guardianship cases, you must provide a written letter or certificate from a qualified physician or, when the alleged incapacity results from a mental condition, a qualified psychologist. Certain circumstances may allow an advanced practice registered nurse to provide an examination of opinion.
Provide notice and representation: The proposed ward must receive the notice required by law and is entitled to participate in the proceeding. The court will appoint an attorney ad litem to represent the proposed ward's interests, including the proposed ward's expressed wishes. This provides the proposed ward with independent legal representation during a proceeding that could significantly affect their personal and property rights.
Attend the hearing: The court will hold a hearing to determine whether the requirements for guardianship have been met. The judge will consider the evidence presented, determine whether a guardianship is necessary, and, if so, what authority the guardian should receive. If appointed, the guardian must complete the required qualification process, which includes taking an oath and may require posting a bond, before receiving Letters of Guardianship.
The court's role does not end with deciding whether to appoint a guardian. Texas courts can continue to review guardianships and consider whether changes are appropriate as the ward's circumstances change.
How Can Guardianship Be Challenged?
Guardianship may be challenged when someone disputes whether it is necessary, who should serve as guardian, or how the guardianship is being administered. The available procedure depends on whether the challenge occurs before appointment or after a guardian has already been appointed.
Objecting to a proposed guardianship: A proposed ward or another person with the right to participate in the proceeding may dispute the need for guardianship or challenge the evidence of incapacity. The issue may be whether the ward meets the legal requirements for guardianship or whether a less restrictive alternative could address their needs.
Disputing who should serve as guardian: Sometimes the disagreement is not whether assistance is needed, but who should have authority to provide it. Texas establishes priorities for certain guardianship appointments, but the court must also consider the applicable statutory requirements and the circumstances of the case when determining who should serve.
Seeking a more limited guardianship: A ward may have limitations in one area without needing someone else to control every aspect of their affairs. Texas allows the courts to consider the scope of a guardianship and limit a guardian's powers when appropriate.
Seeking restoration or modification of rights: A ward or another authorized person may seek to modify guardianship or restore the ward's capacity. Depending on the circumstances, the court may limit the guardian's powers or terminate the guardianship if the applicable legal requirements are met.
Seeking removal of a guardian: Concerns about a guardian's conduct can also lead to a removal proceeding. Texas identifies circumstances that may support removal, including certain failures involving guardianship of property, required filings, bond requirements, or the ward's care. In specified circumstances, the court may act on its own motion or in response to a motion from an interested person, including the ward.
Because different challenges involve different legal standards and procedures, the appropriate response depends on the circumstances and the stage of the guardianship proceeding. At Tefera Law Firm, PLLC, we can help you determine what legal options may be available to challenge guardianship. We can represent you in proceedings involving objections, modifications, restoration of rights, or removal of a guardian and help present your position to the court.
What Happens After a Guardian Is Appointed?
A guardianship remains subject to court oversight after the appointment. The guardian must continue to comply with legal duties and applicable reporting requirements, rather than simply making decisions without further court involvement.
A guardian of the estate generally must manage the ward's property and financial affairs, and file required accountings with the court. A guardian of the person generally must file reports about the ward's condition, circumstances, and care. The courts may also review other reports and information required by law.
This continuing oversight can become important when circumstances change, or concerns arise about the guardian's actions. If the guardian is not fulfilling their responsibilities or the ward's needs have changed, the court may have authority to address the situation through modification, removal, termination, or other appropriate proceedings.
Our experienced Texas estate planning attorneys can help you address concerns that arise after a guardian has been appointed, whether they involve changes to a guardianship, restoration of rights, or concerns about a guardian's conduct, and help you understand what options may be available through the court.
Contact Our Experienced Texas Guardianship Attorneys Today
Guardianship proceedings can affect a ward's personal and financial decision-making authority. Therefore, it's important to consider the scope and duration of assistance when pursuing guardianship protection. Whether you're seeking guardianship for a loved one, challenging a proposed guardianship, or concerned about an existing guardian's actions, understanding the available legal options is an important part of protecting your interests.
At Tefera Law Firm, PLLC, our attorneys, Chrissy Tefera and Jessica Arreguin, are dedicated to helping clients establish guardianships, challenge proposed arrangements, seek modifications or restoration of rights, and address concerns about the administration of an existing guardianship.
Located in Colleyville, Texas, we serve clients throughout Tarrant County, Keller, Grapevine, Southlake, Watauga, Hurst, Euless, Bedford, North Richland Hills, Fort Worth, Arlington, Dallas, Denton, and the neighboring areas. Contact us today to schedule a free 30-minute phone consultation.