Fort Worth Guardianship Attorney
What is Guardianship?
Guardianship is the process of removing certain rights from an incapacitated individual and awarding those rights exclusively to another person. A guardian is someone who is chosen or appointed to make legal decisions for another person who is unable to make those decisions on their own.
The guardianship proceeding is handled in the Probate Courts in Texas. Hiring a skilled and seasoned guardianship attorney is the first step of the process. Guardianship Attorney Bob Leonard provides sound guidance to help you avoid legal pitfalls.
Bob Leonard has more than 30 years legal experience. He is extremely qualified and knowledgeable with respect to guardianship issues. Bob served on the Board of Guardianship Services, Inc. of Fort Worth as a Board member and as President for the full term of service allowed. Prior to that, he was the Capital Chairman for Texas Hospice. He practices Family Law and Probate Law. He is a highly respected guardianship attorney in Tarrant and Parker Counties.
Who Needs a Guardian?
Guardianship becomes necessary when an individual becomes incapacitated through age or medical or mental disability. Guardianship is also essential when a disabled minor becomes an adult (turns 18 years of age).
In some cases, due to an accident or sudden illness or injury a person becomes immediately incapacitated or incapable of caring for himself or herself. In other cases, there is a slow decline in abilities leading to incapacity. A guardian must be appointed to care for this person.
In the case of a disabled child who is turning 18, as an adult, there must be a court proceeding to determine incapacity and to appoint a guardian — usually the parents or current caregiver. Without the guardianship, the parent or caregiver will no longer be able to work with doctors, educators, government entities or other services on behalf of the now-adult child. Without court appointed guardianship, they can no longer maintain the care and services for their child.
Who Can Serve as a Guardian?
The Texas Estates Code dictates and prioritizes persons who are eligible to become guardians. The ward’s spouse is entitled to be the guardian before any other individual. If there is no spouse or if the spouse declines or is unable to serve, then the next of kin is the next eligible individual to serve as guardian. If more than one person is entitled to serve in the same degree of kinship, the court appoints the best qualified person.
NON FAMILY MEMBERS
If there is no family member willing or able to serve, the court may appoint any disinterested person, bank, financial institution, or guardianship program. The DADS Guardianship Program or other agencies may be appointed as guardian for an incapacitated person who does not have a family member or friend who can serve in this capacity.
When determining who to appoint as guardian, the court will consider the incapacitated person’s best interest. The court will give consideration to the ward’s preference and may appoint this person if he or she is not disqualified. It is important to note at this point, Texas residents may designate a guardian prior to incapacity by completing a brief statutory form. See our Estate Planning Section for Designation of Guardian.
Who Cannot Serve as Guardian?
PERSONS DISQUALIFIED TO SERVE ARE:
- a person whose conduct is notoriously bad
- an incapacitated person
- a person who is a party, or whose parent is a party, to a lawsuit concerning or affecting the welfare of the proposed ward
- a person indebted to the ward, unless the debt has been paid
- a person asserting a claim adverse to the proposed was or the ward’s property
- a person who, by lack of education or experience, is incapable of prudently managing the ward’s estate, or
- a person, corporation, or institution found unsuitable by the court.
ADDITIONAL PERSONS WHO CANNOT SERVE
It is also presumed not to be in the best interest of a ward to appoint a person as guardian if they have been convicted of:
- any sexual offense
- sexual assault
- aggravated assault
- aggravated sexual assault
- injury to a child
- abandoning or endangering a child, or
Categories of Guardians
In Texas, a person is classified as Guardian of the Person, Guardian of the Estate or Guardian of the Person and the Estate. A Guardian of the Person makes personal decisions for the disabled person, or Ward, such as medical, residential, and treatment decisions, and makes sure the Ward is in a safe place and receiving appropriate care. A Guardian of the Estate protects the property of the Ward and uses that property appropriately to care for the Ward. In most cases, if the Ward needs a Guardian of the Person and a Guardian of the Estate, the same person will handle both duties. However, there may be some instances where it is more practical to split the duties.
We also see Co- Guardians of the Person, Estate or both, in the case of a disabled child who is turning 18, when both parents serve as guardians.
Sometimes a loved one does not agree that he or she needs a guardian. The courts take the proposed Ward’s rights seriously and appoint an ad litem attorney to represent the wishes of the guardian. Bob has served in this capacity many times, which gives him a unique perspective as to both sides of the issue.
Other times family members and loved ones do not agree on who would take the best care of the proposed Ward. In this case, the party opposing the appointment of a specific person as guardian needs an adept litigator, familiar with the Probate Courts and the Guardianship process. Bob has handled numerous guardianship litigation matters and is always a staunch advocate in court.
Alternatives to Guardianship
In Texas courts, guardianship should always be a last resort. We can help find and evaluate less restrictive alternatives to guardianship and recommend available services. Input from the family is welcomed.