GUARDIANSHIP
Guardianship and custody are often confused. Often, grandparents want to be appointed guardians of their grandchildren in order to get them covered under their health insurance. This is specifically not allowed under the Texas Probate Code.
Guardianship vs. Custody:
A person is appointed the guardian of another person under the Texas Probate Code. The person over whom the guardian is appointed is called the “ward”. The ward must either be a minor or if they are an adult, then the ward must be incapacitated to the extent that they are unable to care for themselves or their business affairs. Before a guardian is appointed they must post a bond equal to all of the assets owned by the ward. Each year thereafter they must file an inventory and account for every dollar received and every dollar spent on the ward. In other words, being a guardian is expensive and burdensome and should be avoided if there is any other way to care for a person. A person will not be appointed guardian of a child without good reason. Getting coverage for the child under the guardian’s health insurance is not a good enough reason.
A person can apply for custody of a child under the Texas Family Code. If both parents agree to let the grandparent have custody, then the court will usually approve it and the child can be covered under the grandparents’ health insurance. No bond is required and there is no annual accounting to be filed with the court. The custody orders will remain in place until further order of the court or until the child turns 18. The parents will be ordered to pay child support according to their income.
Guardianship of An Adult:
At one time, a court had to find a person was “mentally incompetent” in order for a guardian to be appointed for them. Thereafter, the ward had no rights whatsoever and the guardian had all the power to manage their affairs. The courts no longer use that standard and now must find the person “mentally or physically incapacitated”. The court now grants to the guardian only so much power as may be necessary to care for the ward and the ward isn’t stripped of all of their rights like before.
The court will require a letter from a doctor stating that they have examined the ward within the last 90 days and setting out exactly what is wrong with the ward. This letter is attached to the petition for guardianship. The court will appoint an attorney to represent the ward (the guardian ad litem) whose job it is to represent the ward and challenge the necessity for the guardianship. A hearing is held and the ward must be present unless there is good cause why they shouldn’t or can’t be.
If the guardian is appointed at the hearing, they will have to post a bond equal to the assets of the ward or in an amount set by the court. The court is required to order a bond be posted by the Texas Probate Code. The guardian must sign an oath swearing that they will carry out their duties as ordered by the court.
The guardian cannot spend any of the ward’s money or sell any of the ward’s assets without a court order. The guardian can ask the court to order that they be allowed to spend a certain amount each year for the maintenance of the ward without having to come back to court for permission to spend each and every dollar.
Each year the guardian must file a sworn Inventory and Accounting listing every dime that was received or spent during the year. The accounting must balance perfectly and is reviewed by the court. Any discrepancy will have to be explained to the court or the guardian risks being removed and having his bond called to pay for any missing funds. The bond will only be released when the guardianship ends.