Guardianships are typically very complex and have a myriad of issues. Consequently, understanding the process involved in obtaining a guardianship over someone can be very difficult. Following is a bullet-point list of the sets (in order) that are generally followed in a routine guardianship proceeding to have someone appointed as guardian of the person or estate of a loved one.
- The Application. To initiate the guardianship proceeding, the proposed guardian must file an Application with the Court asking to be appointed as the Guardian. The Application must include specific information required under the Texas Probate Code, and it must be accompanied by a letter from the Ward’s doctor stating that the Ward lacks the capacity to make decisions for him/herself.
- The Ad Litem Attorney. Once an Application has been filed, the Court is required to appoint an attorney ad litem to represent the proposed Ward’s interests in the guardianship proceeding. When the ad litem is appointed, they will typically go visit the proposed Ward either in their home or in the facility in which they live.
- The Hearing. Assuming that the ad litem attorney is not going to contest the guardianship on behalf of the proposed Ward, the next step in the process is the hearing before the Court. At the hearing, the Court will appoint the guardian and set the bond amount. It is important to note that the proposed Guardian will be required to attend the hearing, and the proposed Ward will be given the option to attend.
- Qualification. Once the guardian has been appointed by the Court, he/she must qualify as the guardian. This requires the guardian to take an Oath (swearing to fulfill the duties of guardian) and post the Bond. A guardian of the person will usually be required to post a small cash bond ($100 or so), but the guardian of the estate will be required to post a substantially larger bond depending on the size of the assets of the estate.
- Guardian of the Person: From this point, the guardian of the person has essentially no further requirements with the Court other than to file an annual report providing information about the Ward’s condition.
- Guardian of the Estate: After qualifying, the guardian of the estate is going to have several requirements to fulfill:
- File an Inventory of the Ward’s assets with the Court.
- File an application for a Monthly Allowance for regular monthly expenditures of the Ward
- File an Investment Plan with the Court showing the guardian’s intended investment of the Ward’s assets.
- Publish Notice to Creditors in a local newspaper.
- File any Applications for Expenses with the Court for expenses necessary for the Ward’s benefit.
- Make sure that the Ward’s taxes are paid yearly.
- Account to the Court each year for the income and expense of the estate and the gain or loss of assets of the estate.
Once these initial steps of the guardianship of the estate have been completed, the guardian may have a variety of things that he will need to do over the course of the guardianship. This may include selling cars, houses, stock, etc. to pay medical expenses or other expenses of the guardianship. It may include collecting debts owed to the Ward or paying debts owed by the Ward. Since the nature of these responsibilities is never the same from case to case, it is impossible to provide an exhaustive list of them.
Because of the complexity of the issues involved in a guardianship of an estate, most of the Courts in Texas will require the guardian of the estate to retain a lawyer to advise them on these issues throughout the pendency of the guardianship. Because the attorneys at Ford+Bergner LLP advise clients on these issues regularly, we have the experience to guide clients through the complex record-keeping involved in a guardianship estate. Do not hesitate to Contact Us if we can assist you in your estate guardianship matters.