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Thursday, May 1, 2008

Texas Guardianships

Guardianship Applications and Contests

A guardianship is sometimes needed when a person cannot take care of herself or himself. Typically, a Texas Probate Court will look to alternative less drastic measures to avoid a guardianship or making someone a ward. This is because a guardianship takes a person's rights away including use of their finances and decisions on their daily care. An Application for a Guardianship should only be filed to further a person's best interests.

Incapacitated Persons and Guardians

According to the Texas Probate Code Section 601 (14), there are three types of incapacitated people that need guardians. The first is a minor which includes those under 18 years of age that have not been emancipated. The second are adults who because of a physical or mental condition, are substantially unable to provide food, clothing, or shelter for themselves, to care for their own physical health, or to manage the individual's own financial affairs. The third are people that must have a guardian appointed to receive funds due the person from any governmental sources.

A person is determined to be "incapacitated" upon a finding by a court that the person lacks the capacity to do some, but not necessarily all, or the tasks necessary to care for himself or herself or to manage his or her property.

A court may appoint a guardian with full authority over an incapacitated person or may grant a guardian limited authority over an incapacitated person as indicated by the incapacitated person's actual mental or physical limitations and only as necessary to promote and protect the well-being of the person. If the person is not a minor, the court may not use age as the sole factor in determining whether to appoint a guardian for the person. In creating a guardianship that gives a guardian limited power or authority over an incapacitated person, the court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person.

Setting Up A Guardianship & Filing an Application for Guardianship

An Application for Guardianship can be filed by any person that does not have an adverse interest to the proposed ward. This rule is to make it easy for a good Samaritan to help a person that is unable to help themselves, but to prevent people from attempting to take control over people that they owe money to or are fighting in a court battle. Most applications for guardianships are filed and determined in a county court or probate court, however, the determination can be transferred to District Court. To have a guardian appointed the applicants must have a medical report from a doctor that states that the proposed ward is substantially unable to take care of themselves. This medical report can be obtained prior to the application or as part of the court's determination.

Drive By Guardianships & the Race to the Court House

A proceeding for the appointment of a guardian for the person or estate, or both, of an incapacitated person shall be brought 1) in the county in which the proposed ward resides, or 2 ) is located on the date the application is filed or 3) in the county in which the principal estate of the proposed ward is located. If there are multiple counties where the application for a guardianship can be heard, then the place where the first application is filed controls. Combining this rule with 2) above, we have instances where a family member is brought for a visit for the purpose of filing for an application to get the proceeding in a local court. This can be convenient, but also can create races to the court house for different family members.

The Duties of a Guardian

The duties of a guardian are not only to take care of the ward or minor, but to manage the ward's finances or estate. Included in these duties are accounting reports that must be filed in managing the ward's finances. The failure to properly manage the estate or prepare the accounting reports can be a breach of fiduciary duty and can subject the guardian to liability for any misspent money or unaccounted assets.

If someone close to you is in need of a guardian and needs someone to take care of their financial affairs or even worse if there are others that are attempting to wrongfully seize your or someone you love's assets, make sure that there is someone to look out for your interests. A court appointed attorney may help Someone to assist in seeking inventories and obtaining an accounting as to what has been spent and what needs to be done to free up property and assets.

For more information on Austin Texas Guardianships, go to the following web page on Travis County and Austin Texas Guardianships.

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