Appointment in a Guardianship Proceeding
The appointment of a guardian can be a complicate and often frustrating experience for all of those involved. Guardianship is indicated in a variety of situations such as minors whom have lost their parents, the elderly parent that cannot make financial decisions due to mental incapacity (Dementia, Alzheimer’s, Brain Damage or the like), or individuals that have recently suffered some other mental or physical disability. In Texas, guardianship is taken seriously and the past legislative session the State’s Legislature has developed a “Bill of Rights” for wards to ensure that there is sufficient protection provided to the ward and that limitations be set on the guardian.
Before a Judge may appoint a Guardian to a specific person there are a list of findings that must be proven by Clear and Convincing Evidence as a matter of law. Clear and Convincing Evidence is a very high standard of proof employed in civil cases, thus the evidence for the findings must be very strong. The court must make 4 findings listed below:
- The proposed ward is incapacitated;
- It is in the proposed ward’s best interest to have a guardian appointed;
- The rights of the proposed ward or the ward’s property will be protected by the appointment and;
- Alternatives to a guardianship, as well as available support needs, were considered and determined to not be feasible.
A guardianship must be the last viable option to insure the Ward is adequately supported and taken care of. Each of these findings must be sufficiently proven before a family member or a third party may manage and control the Ward’s estate. Texas protects its Wards from being abused in any way.
If you have a family member, especially an elder parent that has become mentally incompetent due to Alzheimer’s, Dementia or otherwise, it would be prudent to contact an experienced attorney about appointing a guardian for their estate. It is important to know that there are two types of guardianship. One is the guardian of the person and the other is the guardian of the estate. Two individuals may be appointed for a single ward if circumstances dictate. If you have an elder parent with a sizeable estate that is suffering from Dementia, Alzheimer’s, or is otherwise non-compos mentis it is smart to contact an experienced attorney to determine any probate issue you may have and the possibility of an appointment for guardianship of the person and guardianship of the estate.
Julian Nacol, Attorney
The Nacol Law Firm P.C.
990 S. Sherman St.