Daniel J. Wright
How to Become a Legal Guardian of Person, Estate or of Both
A legal Guardian is someone with the legal authority to care and make decisions for a minor child or incapacitated adult. Becoming a legal guardian over someone else involves filling out a number of forms and going through one or more court proceedings to be sworn in as the Guardian. It is extremely important that you take all of the proper steps to become a legal guardian in order to ensure that you have the legal authority to make important decisions for the person in your care. This is a difficult and lengthy process whereas you would need to retain an Attorney to assist you with the legal process.
Deciding whether to become someone’s legal guardian is a decision that you must determine is right for you and your situation. Guardians are court-supervised caretakers for minors and incapacitated persons. Guardians are responsible for the well-being of their wards (the person for whom they are the guardian), and may also be responsible for handling the person’s assets and finances. The guardian must periodically report to the court on the ward’s status. Make sure that you are prepared to accept the responsibility of acting as a legal guardian for someone by consulting with an Attorney to gain the knowledge of everything that is required in becoming someone’s guardian.
You must also take into consideration alternatives to becoming a legal guardian for your loved one, family or friend. There may be other avenues to protect the child’s or adult’s well-being short of a legal guardianship. Some alternatives include a power of attorney, living will, health care proxy, and/or a representative payee arrangement in the event that the proposed ward is receiving social security benefits. You may also be able to file for a temporary guardianship, which is a faster process for emergency cases, and ends when the court appoints a permanent guardian or the temporary guardianship expires.
Another important step you must make is verifying whether or not your prospective ward is eligible for a guardianship. The eligibility standards for guardianships differ between children and adults. Procedures differ by state, but courts will appoint an attorney to investigate and represent the interests of the proposed ward. A child can have a non-parent guardian as long as the child is under 18 years of age and has not been emancipated by a court order. An adult is not eligible for a guardianship unless the court finds evidence that the adult is legally incapacitated, either by age or disability. Incapacity must be proven by clear and convincing evidence that the person cannot provide his or her own food, clothing, or shelter, manage physical health or financial affairs. Texas Courts require a statement also known as Certified Medical Exam from a doctor regarding the ward’s incapacity upon filing the initial Motion to Appoint a Guardian of Person or Estate.
You then have to determine if you are eligible to become a Guardian. To become a guardian, you must demonstrate to the court that you are capable of accepting the responsibility of a guardianship. You do not need to be a relative of the proposed ward to become a Guardian, however, some of the basic requirements that will make you ineligible are as follows:
- Have a history of bad conduct, like a criminal record for violence or dishonesty;
- Have conflicts of interest with the ward, such as owing an outstanding debt to the ward or standing to benefit from taking advantage of the ward;
- Are inexperienced with providing care or managing property and resources;
- Lack sufficient education to provide care or manage property and resources; or
- Are a minor or incapacitated person yourself.
- If two or more eligible people both wish to become the guardian, the court will have to choose one over the other. In Texas, if more than one person seeks a guardianship, the court will consider whether the proposed ward designated someone to serve as guardian prior to his or her incapacity. The Court will then give priority to proposed guardians in the following order: anyone designated by the last surviving parent of the ward, the ward’s spouse, the ward’s next of kin, and non-relatives.
Some clarification between guardianship of the person versus guardianship of the estate is something that majority of people do not understand either. Your state may require you to submit different forms depending on whether you wish to become the guardian of the person or the estate or both. Guardianship of the person means that you are responsible for the well-being of the ward, from personal care and maintenance to medical decisions. If the ward is a child then you will be responsible for their living conditions, schooling, medical needs, and any harm the ward causes. Guardianship of the estate means that you are tasked with managing, investing, protecting, and disposing of the ward’s assets and property in accordance with the law and the ward’s best interests.
The process of having someone declared legally incapacitated can be a challenging process. The process can be further complicated if the ward has substantial property or assets to manage. It may be more time and cost-effective to have an attorney handle your case. Some courts with particularly complicated guardianship processes may not hear guardianship applications filed by non-lawyers or pro se parties. Consult with an experienced attorney such as the family lawyer Arlington TX locals trust today.
A special thanks to our authors at Brandy Austin for their insight into Family Law.