Declaration of Guardianship
The Declaration of Guardianship is a document designed to help head off the conflicts over guardianship. Guardianship refers to the area of law that covers those who are taking care of others who are unable to care for themselves. An individual who has been deemed by the Court as an incapacitated person is called a Ward. A guardian is someone who is appointed by the Court to be legally responsible for caring for a Ward.
When an adult is determined to be incapacitated, whether as a result of dementia, Alzheimer’s, brain injury or some other means, they have been deemed to be unable to make any decisions or choices regarding their care and finances. When such a determination is made the Court will name a guardian to undertake the Ward’s care.
Before an individual can be deemed incapacitated the Court has to determine to its satisfaction that the individual is in fact incapable of taking care of themselves. This evaluation involves medical assessments which 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. In addition to the medical exam, the applicant must show that they have looked into supports and services for the proposed Ward and that those available are not enough without the court granting a 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 themselves.
In a guardianship hearing, the proposed Ward will be assigned a State Bar of Texas certified attorney ad litem, who will represent his or her legal concerns. The purpose of the attorney ad litem is to advocate for the best interest of the proposed Ward.
A prospective guardian, called the Applicant, should have a lawyer to help through the process—especially if there is more than on Applicant seeking to become the guardian. While the appointed guardian will usually oversee both the personal care and the estate, the Court may choose to have those dual functions split between two people, with one overseeing the estate and the other overseeing the health and welfare of the Ward.
A Declaration of Guardianship helps to resolve potential conflict regarding who should care for you should you become incapacitated. In filing this document, you designate the person whom you wish to serve as your guardian should you become incapacitated and you either do not have the powers of attorney already assigned and/or because someone has obtained an improper power of attorney. Prior to incapacitation, you may designate in a declaration who you wish to make decisions on your behalf regarding your person or estate. The declaration will be presented to the Judge as an exhibit during the guardianship hearing. In addition to stating you want to be assigned as guardian, you may also indicate persons who shall be prohibited from obtaining such power over you in the event of incapacitation.