Houston Adult Guardianship Attorneys

Assessing the Drawbacks and Benefits of Adult Guardianship

The attorneys at Hendershot Cowart P.C. are trusted advisors on guardianship for families in Harris, Fort Bend, Montgomery, and Galveston counties, we’ll give you straightforward advice and create an action plan to protect your loved one.

On This Page:

• What is Adult Guardianship?
  • Incapacity vs. Disability
• Types of Adult Guardianship
• Who Can Be a Guardian?
• What Are the Responsibilities of Being a Guardian?
• When Should I Seek Guardianship?
• What Are The Steps For Guardianship?
• The Benefits of Adult Guardianship
• Potential Drawbacks to Adult Guardianship
• Alternatives to Adult Guardianship
• Altering or Terminating a Guardianship
• How Our Guardianship Attorneys Can Help

If you are considering seeking adult guardianship, or would like more information about how it works and what options you may have for your situation, our guardianship and probate attorneys at Hendershot Cowart P.C. are available to help.

Adult guardianship is a legal relationship in which a person (the “guardian”) is appointed by a court to make decisions on behalf of another adult (the “ward”).

As a legal process intended to protect vulnerable individuals from exploitation, neglect, abuse, and other adversities, guardianship proceedings have two general components:

1. Taking away the legal rights of a “vulnerable” individual (known as a ward); and
2. Bestowing the ward’s legal rights upon another person (the guardian).

Adult guardianship arrangements are meant to benefit and protect vulnerable adults, such as those who are dealing with cognitive or mental disabilities, or those who may not be able to communicate their wishes due to a physical condition.

Legal guardianship in Texas is nearly always sought for the purpose of caring for an incapacitated adult, though it can also be sought for minors in some cases.

Per statutory definitions, incapacity means a person, due to a mental or physical condition, is substantially unable to:

• Provide for their own basic needs (i.e. food, shelter, clothing); or
• Care for their own physical / financial well-being.

These situations are common among elderly adults in frail and vulnerable states of health, as well as for adults with mental or physical disabilities which hinder their ability to care for themselves. However, the law makes an important distinction: incapacity and disability are not one and the same.

A person may have a disability without being incapacitated, such as when a person has partial hearing loss which, although difficult for their daily life, does not render them unable to support themselves. Incapacity, on the other hand, does mean an inability to care for oneself – whether it is partial or total. If incapacity is partial, a guardian’s rights over the ward can be limited.

In Texas, there are four types of adult guardianship, including:

• Guardian of the person: This can be full or limited. The guardian will make important personal decisions for the ward, including their living arrangements, whether they will enter a care or nursing home, and the type of medical treatment they will receive. A guardian of the person may also represent the ward in important, personal legal matters, such as divorce and other non-financial issues.
• Guardian of the estate: This can be full or limited. The guardian will be responsible for managing their ward’s financial affairs, including paying bills, overseeing investments, applying for Medicaid and other government benefits, and can even buy and sell property on behalf of the ward.
• Guardian of the person and the estate: This can be full or limited. The guardian will make personal and financial decisions for the ward, as outlined by the court’s guardianship order.
• Temporary guardianship: This is typically used in urgent situations as a stopgap to ensure that the ward’s affairs are taken care of while permanent guardianship is established.

Once established, the guardian has several legal responsibilities that must be fulfilled. In addition to managing the affairs of their ward as outlined in their guardianship order, they must also file yearly reports and accountings of the ward’s estate with the court that appointed the guardianship. Furthermore, they may also be required to submit certain decisions to the court for approval, as outlined by their guardianship order.

In Texas, priority is given to appointing someone as a guardian who:

• Has a close relationship to the proposed ward – such as a spouse, parent, adult children, or other close relatives; and 
• Someone qualified to handle the ward's affairs. This means they are responsible, have good judgment, and are able to meet the ward's specific needs.

If there are no suitable family members available, the court may appoint a professional guardian, who is a licensed individual or agency qualified to handle guardianship responsibilities. This is typically used as a last resort.

Being a guardian is a major responsibility. Before taking on the role, weigh the responsibilities against your ability and willingness to handle them. 

A guardian must meet the legal responsibilities established by the court, which may include:

• Paying the ward’s bills and filing tax returns
• Managing the ward’s assets
• Ensuring the ward has access to proper housing, food, clothing, and medical care
• Filing annual reports or accountings with the probate court. In some cases, the court may require an initial inventory and appraisal of the ward's estate to establish a baseline for financial management.
• Attending court hearings. Guardianship is periodically reviewed by the court. The guardian is required to attend these hearings and provide updates on the ward's condition and the management of their estate.
• Adhering to the limitations and requirements set forth by the court

If you are appointed guardian – or considering serving as guardian – for someone in Texas, it's crucial to understand your duties. Consult with an attorney if you have any questions about your role or responsibilities.

When your family member cannot independently manage personal needs, medical needs, or finances without support due to a mental or physical disability, it may be time to seek guardianship. 

Consider these questions when determining if guardianship is the right course of action:

• Is your loved one paying bills late?
• Are they at risk of scams or financial exploitation?
• Do they understand their medical condition?
• Are they able to manage their own prescription medications?
• Are they neglecting their health?
• Is the person at risk of wandering, getting lost, or falling?
• Do they need assistance with basic needs like bathing, dressing, or preparing meals?

A limited guardianship or guardianship alternatives may be appropriate if your loved one still has some capacity in one or more areas. A probate and guardianship attorney can provide valuable guidance in navigating this complex situation.

To become a guardian, you must go through a legal process:

1. Consult an attorney. Guardianship is a complex legal matter, and it's advisable to have an attorney guide you through the process. Your attorney cannot represent the proposed ward (the person needing a guardian) in court, but they can represent you (the petitioner) and ensure everything is done correctly.
2. File an application. Your attorney will file an application for guardianship with the appropriate court in the county where the proposed ward resides. 
3. Medical Evaluation: The court will require a medical evaluation from a licensed physician or psychologist. This document should detail the nature and extent of the proposed ward's incapacity due to dementia and evaluate their decision-making ability. All Texas courts have a prescribed form for this document called a “Physician Certificate of Medical Examination” that must be used.
4. Serve Notice: The proposed ward must be personally served with the application. Other interested persons, such as close relatives, may also need to be served notice of the guardianship case. Your attorney can counsel you on the specific legal requirements.
5. Appoint Attorney Ad Litem: The court is required appoint an attorney ad litem to represent the proposed ward's interests in the proceedings. The attorney ad litem is required under Texas law because the proposed ward is entitled to have their interest represented in the proceeding, and it would be a conflict of interest for the applicant’s attorney to also represent the proposed ward.
6. Hearing: A hearing will be held where you, the proposed ward (if able), and your attorney will present evidence to the judge. The judge will review evidence, like medical records and testimony, to decide if the person with dementia is incapacitated and determine if guardianship is necessary and, if so, the extent of the guardian's authority.
7. Guardianship Order: If appointed as guardian, you'll need to take an oath to perform your duties and post a bond with the court. Once these requirements are met, the court will issue "Letters of Guardianship" officially granting you guardianship authority.

Once a guardianship is created, only a court can alter or terminate it.

Guardianships are unusual legal relationships, and they can make for complex proceedings. Learn more about navigating the Texas guardianship process.

When someone is incapacitated or otherwise unable to make important life decisions for themselves, a legally appointed guardian can help them make individual decisions and, in many ways, work to safeguard the ward's well-being. Depending on the type of guardianship established, the guardian can make a wide range of decisions for their ward, including medical, financial, educational, and legal.

There are several potential benefits to adult guardianship:

• Protection: The guardian can help protect the ward’s health, safety, and general welfare by making important decisions on their behalf.
• Support: The guardian can provide emotional and practical support to the ward, helping them live a full, more independent life.
• Finances: The guardian can manage the ward’s financial affairs, ensuring that their bills are paid and their assets protected.
• Medical decisions: The guardian can make important medical and care decisions on behalf of the ward when the ward cannot do so themselves, ensuring they receive the care they need when they need it.
• Legal representation: The guardian can represent the ward in legal matters, including signing contracts or representing them in court.

From helping their ward secure housing to ensuring that their financial concerns are taken care of, the guardian plays a critical role in their ward’s life. As such, it is vitally important that anyone who is or will be appointed guardian over someone else seriously consider the weight of the responsibility and consult with an attorney so that they are fully aware of what will be expected of them.

Though the goal of a guardianship is to ensure that the ward is taken care of both personally and financially, it is not without its drawbacks. As with any legal arrangement, guardianship will not be appropriate for every situation and generally should not be your first-choice solution.

Some potential drawbacks to guardianship include the following:

• A loss of autonomy for the ward: This is the most significant drawback to establishing legal guardianship over an adult. Because the guardian is responsible for making decisions on behalf of the ward, the ward may not have any say or may feel they have lost control of their own lives. This loss of independence can be difficult for the ward to deal with emotionally and practically.
• Costs: Establishing legal adult guardianship can be a costly process, and the expenses associated with legal fees and other ongoing costs related to the care and support of the ward may be significant.
• Conflict: Depending on the circumstances of the guardianship, there may be conflict between the guardian and the ward over decisions that are made. This can be particularly challenging if the ward is able to understand and express their wishes but is unable to make their own decisions.
• Lack of flexibility: Because guardianship is a legally binding arrangement, it can be very difficult to amend or terminate once it is established. As circumstances change over time, the rigidity of legal guardianship may become problematic.
• Stigma: There may be a stigma attached to adult guardianship, as it implies that the ward cannot make their own decisions and requires the support of a guardian. This can be a source of shame or embarrassment for the ward.

Before moving forward with a guardianship, it is important to consider all potential benefits and drawbacks to establishing a guardianship. This is something that your attorney can help you with, as there may be alternatives to guardianship that serve the potential ward better.

It’s important to note that adult guardianship should only be considered as a last resort, and it is generally preferred for adults to have the capacity to make their own decisions whenever possible. In most cases, less restrictive alternatives can be used to give adults the support they need to make their own decisions.

Alternatives to guardianship can include:

• Medical power of attorney to manage medical decisions
• Durable power of attorney to handle financial affairs
• Supported decision-making agreements 
• Establishing a special needs trust
• Designating a representative payee to receive the person’s government benefits

Informal options, like establishing a joint bank account with your family member can also be an effective alternative.

Modifying or ending a guardianship requires going through a legal process. This process will likely require the assistance of an attorney as you will have to present evidence that the proposed changes or termination are in the ward’s best interest. These proceedings are held at a court hearing before a probate judge.

Guardianships are unusual legal relationships, and they can make for complex proceedings.

By working with our experienced attorneys, you can obtain the guidance and support to navigate all aspects of the Texas guardianship process, including:

• Applications seeking appointment as Guardian with the Texas Probate Court, which must include physician letters which certify the ward’s incapacity;
• Appointment of an attorney ad litem, who represents the interests of the ward during the proceedings;
• Guardianship hearings before the Court, where ad litem attorneys may contest the guardianship on behalf of the ward (if it’s not in their best interests), or the Court appoints the guardian and sets a bond amount.
• Proof of qualification, which means an appointed guardian must demonstrate that they qualify as guardian, take an oath, and post bond (typically a small fee for a guardian of the person, and a larger fee for a guardian of the estate).
• Post-qualification requirements, which are limited for a guardian of the person (aside from the filing of an annual report about the ward), and more cumbersome for a guardian of the estate. After being appointed, for example, a guardian of the estate must file an inventory of assets with the court, a monthly allowance application for expenditures, and an investment plan, in addition to publishing a notice to creditors in a local paper, paying the Ward’s taxes, and providing an annual account of the Ward’s estate.

Because there are many hurdles in the process, and because awarding control of person’s rights to another is a major decision, legal representation when seeking guardianship is crucial.

If you are considering seeking guardianship or need help amending or terminating an adult guardianship order, contact Hendershot Cowart P.C. for guidance. Our team is well-versed in all aspects of Texas guardianship law, and our Houston-based law firm is prepared to help you today.