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If your loved one is being protected by a guardian you trust, whether that’s you or someone else, it can be very upsetting and disconcerting when someone else brings a challenge against the guardianship or attempts to have a good guardian removed. If you’re facing such a challenge, contact a guardianship litigation lawyer quickly. You’ll need the help of a lawyer to ensure that you can make a strong defense and keep your loved one safe.

How to Defend Against a Guardianship Challenge in Texas

Challenges to a guardianship can arise either from an interested party or from the ward themselves. The challenge could take three basic forms. The challenge could be of the guardian themselves and could be asking that the guardian be removed and replaced with someone else. The challenge could also be seeking to modify the terms of the guardianship, to make them less restrictive and give the ward more autonomy; to make them more restrictive and give the guardian more responsibility; or to divide the guardianship in some way. Finally, the challenge could be to end the guardianship entirely. If you believe that the challenge is unwarranted, here are the steps to take:

Get a Guardianship Litigation Lawyer Quickly

Guardianship cases involve some quite complicated laws and civil procedures. To defend a guardianship challenge, you will have to file an answer to the application, stating your position and why you believe the guardianship as it stands should not be modified or changed. You may also have to provide cogent counterarguments against the applicant’s claims. An attorney is invaluable in this situation. A lawyer will make sure that your answer is not only filed correctly and within the right deadlines but also that it avoids any procedural errors and that the defense you give is clear and backed up with evidence.

Your attorney can also handle representing you in court and present your arguments in that environment. An attorney will also know how to cross-examine any witnesses that the challenger may bring and will work hard to protect your rights as guardian or the rights of the existing guardian you wish to defend. Legal representation is also simply helpful for your peace of mind. It allows you to focus on caring for your word rather than worrying about the civil procedures involved in defending yourself.

Respond to the Challenge

With the help of your lawyer, you will respond to the challenge. You will need to respond specifically to everything detailed in the written application filed by the other party. This application will contain information about the ward, the guardianship itself, and exactly what relief is being sought, and it is the duty of whoever files this application to properly provide you with information about it so that you can participate in the proceedings.

Your response will answer each point made, arguing for why the guardianship should not be changed or ended. In addition to responding to the precise arguments that are brought by the challenger, you may also want to add new counterarguments. The application and your response will trigger a hearing in which all the evidence about the ward’s current capacity, the behavior of the current guardian, and any other issues will be laid out and discussed. In general, the burden lies with the applicant to prove that there should be a change. However, it’s still important for you to provide compelling evidence that the status quo should be maintained.

Gather Evidence and Prepare

To make your case, you will need to have good evidence of exactly what’s going on. The precise evidence that you need will depend on exactly what the challenge is. You may need to demonstrate that the ward continues to need guardianship or that the ward continues to need guardianship at the level currently being provided. In other cases, you may need to show that the current guardian is fulfilling all of their duties to a high standard or that a person who is being suggested as a new guardian is unqualified for the job or has a conflict of interest that should prevent them from taking over.

You might, for example, need a letter or certificate from a physician or psychiatrist describing the ward’s incapacity, the effects of any medication being provided, the prognosis for the ward’s condition, and anything else that would provide a basis for arguing that the ward cannot take care of themselves or manage their own affairs. You may also need to show records of the care that’s been provided, details about the financial management of the ward’s estate, and clarity about any decisions that the guardian has made on behalf of the ward. All kinds of other evidence may be needed, as well, such as medical records, service statements, or affidavits from other people. Your lawyer will help you to identify what’s needed and put it all together to clearly demonstrate why the situation should not be altered.

Attend the Court Hearing With Your Legal Representation

The hearing is a very important event and your opportunity to present your case. It is always wise to attend these hearings with a legal representative rather than attempt to do it on your own. At this hearing, you will be making your clear case for why the ward still requires guardianship or why the guardianship that is currently in place is in the best interest of the ward. The court may appoint an attorney ad litem for the ward unless the ward retains their own attorney. The attorney ad litem is tasked with ensuring that the ward’s interests are properly represented at the hearing.

At the hearing, it’s usually best to allow your attorney to take care of everything and make the case for you. An experienced attorney will understand all the procedures that are in play as well as the laws that bear on this case and will make the most effective case in your defense.

Other Things to Know

It’s important to always bear in mind that Texas law sees guardianship as an issue of liberty, and if there is any opportunity for a ward to regain autonomy, the court will be inclined to award this. A ward can always retain an attorney, and if the ward is believed to be unable to do so on their own, the court can appoint one for them. Additionally, new rules as of 2023 guarantee that a ward has access to anyone who has any control over their life.

This means, for example, that a ward is always allowed to talk privately with a doctor so that they can report abuse and neglect and also has the right to periodically be heard by the court if they wish to express a concern about the guardianship generally or specifically about a guardian. New legal provisions in 2023 also require that any psychiatrist involved in guardianship defense, modification, or application must actually know the ward or have specific experience dealing with those who have an intellectual or developmental disability.

If you are defending against a challenge to a guardianship, contact us right away at Ford + Bergner LLP in Houston, Dallas, Austin, and surrounding areas. We have served over 6,300 clients in Texas and have been helping Texas families for 25 years.