Guardianships are extreme remedies in that they involve depriving an individual of his or her civil liberties.  Accordingly, courts are reluctant to name a guardian and will often prefer a less restrictive alternative to a guardianship if such an alternative is appropriate.  In all applications to have a guardian appointed for an incapacitated person, the court will appoint an independent attorney to represent the proposed incapacitated person.   Guardianship related disputes can arise with regard to the following issues:

  1. Does the proposed incapacitated person truly need a guardianship?
  2. Did the proposed incapacitated person, even though medical evidence indicates lack of mental capacity, instruct the court appointed attorney to oppose the guardianship application?
  3. Does the proposed incapacitated person have a strong case to present as to why he or she does not need a guardian?

Orders of guardianship are often customized to preserve as many rights as possible for the ward while taking away those rights the court believes would be better protected by a guardian of the person or a guardian of the estate.

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What does a guardian do?

The law governing guardianships is contained within the Texas Estates Code where rules and procedures are set out for taking care of minors and incapacitated adults who do not have the capacity to care for themselves or their financial affairs.  A “Guardian” is a person appointed by a Probate Court who is charged with the duty of the care and management of either the person or property (or both) of a minor or an incapacitated adult.  The person for whom a guardian is appointed is called a ward.    There are two distinct roles of a Guardian:

  • Guardian of the Person: has the right to the physical possession of the ward and is responsible for the ward’s care, including all medical and health related care.  The guardian of the person has the responsibility to take charge of the ward, and to establish legal residence as well as to provide care, supervision and protection.  The guardian of the person must arrange to provide the ward with food, clothing, medical care and shelter.

The guardian of the person has the power to consent to the ward’s medical, psychological and surgical treatment.

  • Guardian of the Estate: is charged with the duty of possession and management of the ward’s property.  The guardian of the estate for the ward has the obligation to possess and manage the ward’s property, to enforce all obligations owed by others to the ward and to bring and defend suits by or against the ward.   The guardian has the responsibility to take care of and manage the ward’s estate as a prudent person would manage his own property and must account for all transactions pertaining to the ward’s property.

Quite often the same person will be guardian of the person and the estate but the law allows that different people may serve as guardian of the person or guardian of the estate.

Forcefully – Strategically – Efficiently Resolving Probate, Trust, and Estate Disputes

Some guardianships are unopposed and are relatively routine procedures. Others are hotly disputed as to whether there is an actual need for a guardianship and, if so, who should be named to serve as the guardian of both the person and estate.  Our Dallas-based guardianship attorneys practice throughout North Texas and can assist you with both contested and non-contested guardianships.


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