FindLaw KnowledgeBasePublished: 2012-04-20
When a person is no longer able to care for or make important decisions for him or herself, legal documents like healthcare directives and powers of attorney are supposed to identify people who can step in and make those decisions for the person who is no longer able to do so. Sometimes, unfortunately, those documents may not be prepared in time. In Texas, the process of identifying someone who can make important decisions like health, financial and personal choices on the behalf of the person who is not able and who did not make these arrangements in advance is referred to as guardianship.
Guardianship is the legal process that authorizes someone to provide care and assistance in life decisions for adults who are considered to be incapacitated in Texas. An incapacitated person is defined as an adult who is not able to manage finances or provide shelter, food, clothing or physical care for him or herself because of a physical or mental condition. A guardian is appointed by the court to make life decisions on behalf of the incapacitated person when the incapacitated person is without documents that name a person to handle his or her financial and health related decisions.
A court grants powers to the guardian and, depending on the court’s decision, a guardian may be responsible for:
- Providing care, supervision and protection
- Arranging for medical and mental health services
- Arranging for placement in hospitals or long-term care facilities
- Managing property and financial decisions
- Making medical decisions
A person interested in becoming a guardian files an Application for Appointment of Permanent Guardian in the county where the incapacitated person resides. Documentation of the person’s incapacity must also be submitted with the application.
If the application is filed in probate court, the court will send an investigator to meet with the person to be protected. The investigator will also meet with family members, the attorney for the case, social workers and any other party deemed appropriate. If the court believes the person needs assistance based on the investigator's work, an attorney ad litem will be assigned to represent and advocate for the incapacitated person’s interests.
Next, a hearing date is assigned and all interested parties are notified. At the hearing the court rules on a number of issues, including:
- Whether the person is incapacitated
- Whether guardianship is in his or her best interest
- Defining the rights of the incapacitated person
- Whether the proposed guardian is appropriate and qualified to serve.
The order of the court outlines the court's findings and the powers, duties and limits to duties of the guardian.
If someone you love needs assistance with life choices in Texas, contact an experienced elder law attorney to discuss guardianship.