When an individual becomes incapacitated due to age or disability, family members often wonder how to gain legal authority to care for the incapacitated loved one. Family members need to fully understand Texas guardianship law so that they can properly gain the needed legal powers.  Today's blog post will summarize the beginning part of the guardianship process.

Evaluating Whether A Guardianship is Necessary

Before the Court has authority to appoint a guardian, a physician must certify that the person is, in fact, incapacitated.  The Court must also determine that no feasible alternatives to guardianship are available, and that guardianship is the least restrictive alternative.  If the incapacitated person has the mental capacity to understand the situation, he or she can simply sign a Statutory Durable Power of Attorney (giving someone else power to make business, legal and financial decisions) and a Health Care Power of Attorney (giving someone else power to make medical decisions).  Even if the person is not mentally capable of understanding such documents, there are often other less restrictive alternatives to guardianship that can be explored.

Initiating the Guardianship Process

If less restrictive alternatives are simply not available, any qualified person may file an Application for Appointment of Permanent Guardian.  This application is filed in the county of the proposed Ward's residence, along with the Physician's Certificate of Medical Exam.  

To qualify as guardian, the applicant must also submit to a criminal background check to show that there is no criminal history that might disqualify him.  

Notice is then given to the interested parties.  The proposed Ward is personally served by a sheriff or constable with a copy of the application.  A general notice is published by posting. Certain family members of the proposed Ward are served by certified mail, or sign Waivers.

The Court is required to appoint an Attorney Ad Litem, a local attorney qualified to represent individuals in guardianship cases.  The Attorney Ad Litem represents the wishes and desires of the proposed Ward, and investigates the circumstances of the entire case, with the goal of advising the proposed Ward and advocating the proposed Ward's desires.

Next week's blog post will address the finalization of the guardianship process.

Christiansen Law Firm assists families of incapacitated loved ones in guardianship matters.   The attorneys of Christiansen Law Firm will review the details of your family situation, and present available legal options tailor fit to your circumstances.  For more information on how Christiansen Law Firm can assist you, please contact our offices in San Antonio or Houston.