The Importance of Guardianship
Disclaimer: The following is a great overview of the “frequently asked questions” about guardianship. It was written with Texas guardianship laws in mind, however, much of it generally applicable to any state. You are encouraged to seek the assistance of an attorney in your state when pursuing guardianship.
Parent Association for the Retarded of Texas (PART) Newsletter
“No better ADVOCATE than the parent or family”
Once a person turns 18, his/her parents are no longer considered the natural guardian. This is true even if the individual has a disability such as mental retardation. Parents no longer have the legal authority to make decisions for the adult with a disability unless they are appointed their child's guardian by a judge. This means that the law presumes that the person with a disability can make all of his/her own decisions.
What is Guardianship?
Guardianship is a legal process whereby someone is given the authority by the court to make decisions regarding major life decisions such as medical care, living arrangements, and sometimes financial management and act on behalf of a person who lacks the ability to comprehend and do those things for him/herself. The process is designed to protect an individual who cannot make decisions for himself/herself from being exploited, abused or neglected.
Do all persons need a guardian?
No. Just because a person is mentally or physically disabled does not mean that he/she must have a guardian. A good question to ask is -- can he/she manage his/her personal affairs by making decisions regarding money, understand and sign consents for medical treatment or medications, etc.
Who appoints Guardians?
Only a judge can appoint a guardian.
What does a Guardian do?
Guardians make significant decisions for the individual, called a "ward" by the court. The decisions could include medical consents and consents for medical procedures. The guardian provides necessary legal consent for psychotropic medications, special programs, athletic events (Special Olympics), participation in educational and financial decisions and access to confidential records and reports. The guardian also has authority to speak for their ward in selecting appropriate living arrangements. Essentially, the guardian does the same sorts of things that a parent does for a child.
A guardian is expected to visit and call to check on their ward and his/her care frequently. The guardian is required to renew their "Letters of Guardianship" annually, by turning in a report to the court describing how their ward did during the previous year.
Are there different types of guardianships?
Yes. A "guardian of the person" gives the guardian authority to make decisions about the ward's personal affairs. If the ward owns property or inherits property or an estate, the ward would also need a "guardian of the estate". In most cases only a guardian of the person is needed.
Are there any things that a Guardian cannot do for his/her Ward?
Yes. The guardian cannot vote for the individual, cannot consent to sterilization, cannot voluntarily admit the ward for long term care nor interfere with marriage decisions.
Will I become responsible to cover all of my ward's cost of care if I become a guardian?
No, you are only responsible for making appropriate decisions for your ward as needed.
How do I become the guardian of my family member with mental retardation?
You may work through an attorney and make a request in the form of a petition (application) for your appointment to an appropriate Judge. The petition or application must include documentation of a thorough examination performed by a physician or psychologist that explains why the individual in incapacitated. Also the application should be filed in the county of residence of the individual who needs the guardian.
How much will it cost?
The cost can vary depending on the circumstance such as if there is an estate.
How can I pay for it?
If you do not have the money to pay the cost in full, ask the attorney if you can pay out the cost on a payment plan. Trust fund money can be used to defray the expense of seeking and maintaining guardianship.