For many, when they hear the term guardianship, they think of the legal status pertaining to those who want to function as parents to a child. While that may be the case in some instances, when referring to guardianships in the legal sense, we are referring to the area of law that covers those who are taking care of others who are unable to care for themselves. A guardian is someone who, through a court decision, is legally responsible for caring for an incapacitated person (called a Ward in legal proceedings).
When an adult is determined to be incapacitated, whether that is through a brain injury, Alzheimer's disease, dementia or some other means, and is assigned to the care of a guardian, that adult is giving up many of his or her freedoms. Because the Ward is often deemed to be unable to make any decisions or choices, the Court takes great care in naming someone as a guardian. Being deemed incapacitated and named as a Ward is not a simple and quick process.
Before the question of who the guardian is can be answered, the court has to determine to its satisfaction that the adult in question really is incapacitated. The guardianship case will involve a medical assessment of the proposed Ward's level of incapacity. This can be determined by a licensed medical physician or psychiatrist, but the exam must have occurred within the last four months. If the Ward's incapacity is questioned in a case, a court-appointed medical physician may be brought into the case to make a separate assessment to corroborate or challenge the initial assessment. Additionally, the Applicant will also have to show that they have looked into supports and services for the proposed Ward and that those available are not enough without the guardianship.
There are two types of guardianships: temporary and permanent. A temporary guardianship is used to protect a proposed ward from exploitation, abuse, or some other situation needing immediate attention. A permanent guardianship is initiated when there are ongoing concerns about the ability for the proposed ward to care for himself or herself. Often, the temporary guardianship will serve as a sort of legal stepping stone on the way to a permanent guardianship.
In a guardianship hearing, the proposed ward will be assigned an attorney ad litem (certified by the State Bar of Texas), who will represent his or her legal concerns. A case may also involved a guardian ad litem, appointed by the court to advocate for the best interests of the proposed Ward.
It is recommended that the prospective guardian, called the Applicant at this stage, should have a lawyer to help through the process--especially if there is more than one applicant seeking to become the guardian. While the appointed guardian will typically oversee both the person and the estate, the court may choose to have those dual functions split between two people, with one in charge of the estate and the other looking after the person.
Guardianship cases are civil litigation, just like other types of cases with which you may be familiar (i.e. divorce, conservatorship, possession and access, probate) They are similar in that some can be fairly easy to resolve, with all parties involved recognizing what's best for the proposed ward and moving to a resolution quickly. But, some can be contentious and drag on, particularly if opposing parties have very different ideas for what is best for the proposed Ward.
This is why having a lawyer who is mindful of those realities, and who knows how to effectively move through the obstacles that might arise, is essential for a guardianship case. While not every guardianship case is easy, a lawyer with experience in guardianship cases can make a difficult case move navigable.