Frequently Asked Questions

Do I need an attorney to file for guardianship?

Yes. The State of Texas requires anyone acting on the behalf of a third person to be represented by an attorney.

Do I have to be certified to be a guardian?

No. Only a professional guardian must obtain certification.

Who is likely to be appointed guardian?

The court is obligated to appoint guardians according to the statutorily mandated hierarchy located in Texas Estates Code 1104.051-1104.054, 1104.101-1104.103, and 1202.002 (formerly Texas Probate Code §676 and §677).

What are the types of guardianship?

A guardian of the person makes decisions regarding the life and person of the ward. A guardian of the estate makes decisions regarding the financial affairs of the ward.

Can the same person be the guardian of the person and the estate?

Yes, upon qualification. If there is a guardian of the estate a bond for the estate is required. If someone is only appointed guardian of the person a $100 cash bond is required.

Are there alternatives to guardianship?

Yes! There are many alternatives to guardianship. Some, but not all, including Durable Power of Attorney, Medical Power of Attorney, Power of Attorney, Protective Orders and Trusts. For a more extensive listing of alternatives to guardianship please click here.

How long does a guardianship last?

Permanent guardianship lasts so long as incapacity of the ward continues. Temporary guardianship has a term of not more than 60 days or if it is a contested temporary guardianship until the contest has been resolved.

Do we have to go back to court to change guardians?

Yes. Unless otherwise specified by a Court Order, the guardian of the person remains in office until the ward dies or regains capacity or until the guardian is discharged by the Court.

Can a guardian quit?

Yes. If the guardian wishes to resign, the guardian must file an application to resign; however, before the guardian is relieved of his or her duty the Court must determine whether or not to accept the resignation. Often, the Court will appoint a successor before accepting the resignation and discharging the previous guardian of the person. This procedure gives the Court an opportunity to appoint a successor guardian of the person before discharging the current one, so the ward always has someone to protect his or her interests. PLEASE NOTE, however, that your duty and liability are not discharged until the Court approves your application to resign and discharges you.

What happens to the ward if the guardian of the person dies first?

If the guardian of the person dies the Court should be notified immediately as the Court is obligated to appoint a successor guardian. Any interested person may contact the Court with that information and file pleadings communicating the death of the guardian of the person, or apply, with the assistance of an attorney, to be appointed as successor guardian of the person.

Can a guardian appoint a successor?

No. Only the Court can appoint a qualified successor guardian. However, a guardian can suggest or designate a successor guardian.

Do the guardian and the ward have to live in the same home?

No.

I lost my guardianship letters. How can I get new ones?

Letters of guardianship may be obtained from the County Clerk. Each copy will cost $2.00.

Who or what is a Guardian Ad Litem (GAL)?

A GAL is an attorney appointed to represent the best interests of the proposed ward.

Who or what is an Attorney Ad Litem (AAL)?

An AAL is an attorney for the proposed ward. An AAL’s duties are the same as if the attorney had been retained by the proposed ward for representation in the case.

What is the difference between a power of attorney and a durable power of attorney?

A regular power of attorney expires upon incapacity of the grantor of the power. A durable power of attorney does not terminate upon incapacity of the grantor.

What is the difference between an intellectual disability and a mental illness?

INTELLECTUAL DISABILITY	MENTAL ILLNESS
A person with an intellectual disability has a life-long condition of slow intellectual development, where medication has little or no effect.	A person with mental illness has a disorder that can be treated with medication, psychotherapy or other supports.
Intellectual disabilities can be caused by genetic factors, environmental factors, or problems affecting development before, during or the early years after birth.	Mental illness can be caused by genetic issues, chemical imbalances or difficulties with coping, at any age.
People with intellectual disabilities present a large variety of appearances and degrees of intellectual disabilities. These differences require individualized forms and intensities of therapies and supports.	Mental illness can be a temporary condition caused by bereavement, loss of a job, anxiety at school etc.
An intellectual disability is permanent, there is no cure.	Mental illness may occur periodically.
People with intellectual disabilities need long-term developmental therapies, educational/vocational supports and life-skills training and reinforcements.	People with mental illness need interventions of a medical nature which can be either short-term or long-term in nature.

If my relative has a mental illness when would a guardianship be appropriate?

If the sole diagnosis is mental illness, a guardianship is usually not appropriate. If medications and/or treatment even temporarily restores the individual’s capacity, a guardianship is not generally appropriate. If the mental illness presents with a substantial risk of serious harm to the individual or to others, please call 9-1-1 and/or contact the Mental Illness Court if a mentall illness warrant is needed.