5 Common Misconceptions About Texas Guardianship
Guardianship is an essential legal tool in Texas but is also one of the most misunderstood. Whether you're concerned about a loved one or planning for your future, understanding the realities of guardianship can help you make better decisions. Let's debunk five of the most common misconceptions about Texas guardianship.
1. Misconception: Guardianship Is Only for People With Mental Illness or Drug Use Problems
Debunked: Guardianship is generally unavailable for individuals facing mental health challenges or substance abuse issues.
Explanation:
Guardianships can be established when a person has been determined as mentally incapacitated by a certified health provider. This can include people with cognitive disabilities, dementia, physical incapacities, or severe brain injuries. Persons who experience mental illness or are experiencing the consequences of drug use do not meet this standard since their incapacity may end with proper medical treatment.
Guardianship may also be established for minors who inherit property or elderly individuals experiencing natural cognitive decline. Every case is unique, and guardianship focuses on the individual's functional ability to manage their personal or financial affairs — not merely the presence of a diagnosis.
2. Misconception: Parents Are Automatically the Guardians of Their Child's Money and Property
Debunked: Parents are natural guardians of their child's person, but not necessarily their estate.
Explanation:
In Texas, while parents are generally recognized as the "natural guardians of the person" (meaning they make decisions about the child's health, education, and welfare), they are not automatically the guardians of the child's estate. Suppose a child inherits money, receives a settlement, or receives significant assets. In that case, the parents or designated caretakers must be appointed by a court as guardian of the estate. During the guardianship, the court closely monitors the estate to protect the minor's financial interests. Guardians must post bonds, submit annual reports and accountings, and follow strict rules about using the child's money.
3. Misconception: All Rights Are Taken Away from the Ward When a Guardianship Is Established
Debunked: Guardianship in Texas must be limited to the least restrictive alternative.
Explanation:
Texas law mandates that guardianships remove only the rights necessary to protect the Ward and their property. Modern guardianship focuses on preserving as much independence as possible. The court must specify the Ward's rights, such as the right to vote, marry, or drive. Full guardianship, where virtually all rights are removed, is rare and a last resort. Instead, limited guardianships, supported decision-making, power of attorney, and other alternatives are increasingly used to ensure the individual's dignity and autonomy are respected. In fact, in a guardianship hearing, Courts require proof that the applicant considered all lesser restrictive alternatives were considered instead of a guardianship.
4. Misconception: A Parent Can Automatically Designate a Guardian for Their Child or Adult Child
Debunked: A parent's wishes on who should serve as a guardian for their children are influential but not automatically binding.
Explanation:
Parents can designate a person or persons to serve as guardian for their child through a will or declaration of guardian document, but the court has the final say. In Texas, the court must always determine whether the proposed guardian is qualified and whether the appointment is in the best interest of the child or incapacitated adult. Additionally, when the child becomes an adult, different standards apply. A guardianship for an adult child must be separately established through the courts, even if the parent's preferences are clearly stated. First and foremost, courts are responsible for protecting the rights and well-being of the proposed Ward.
5. Misconception: Obtaining Guardianship Is a Simple and Easy Process
Debunked: Establishing guardianship in Texas is a rigorous and highly regulated legal procedure.
Explanation:
Because guardianship significantly restricts a person's legal rights, Texas courts treat it very seriously. The process requires filing a detailed application, properly notifying all interested parties, conducting a formal court investigation, and appointing an attorney ad litem to represent the proposed Ward's interests. A physician or psychologist must provide a medical evaluation supporting the need for guardianship. Even after guardianship is granted, the guardian must meet ongoing obligations, including annual reporting, bond requirements, and court supervision. The goal is to ensure that guardianship is necessary and that the Ward's rights are protected throughout the process.
Finding an Attorney That Can Help
Guardianship is critical for protecting incapacitated persons, but it's not a one-size-fits-all solution. Texas courts view guardianship as a final resort once all less restrictive alternatives are considered. Texas law also requires attorneys to be certified to file or participate in a guardianship proceeding in Texas. Only 3.5% of Texas attorneys hold this required certification.
If you believe that guardianship might be necessary for a loved one — or if you are planning for your future care — it is essential to work with an experienced and certified Texas guardianship attorney who can guide you through the legal and practical considerations.
