Guide for the Texas Guardian

Powers of the Guardian of the Person.

READ YOUR ORDER. The powers of a guardian are usually delineated in the order of appointment. Therefore, it is very important that you read the order of appointment and be familiar with the powers and duties delineated in the order. If you are unclear about any of your powers and duties, you should ask your Dallas probate attorney about the powers and duties granted to you in your order.

Possession and consent to medical treatment. Typically the guardian of the person of a ward is entitled to take charge of the person of the ward. A guardian of the person has usually the right to have physical possession of the ward and to establish the ward’s legal domicile. Check your order because sometimes the ward retains the power to choose his or her own residence. A guardian also typically has the power to consent to medical, psychiatric, and surgical treatment other than the inpatient psychiatric commitment of the ward.

Consent to Employment. A guardian also has the power to sign documents necessary or appropriate to facilitate employment of the ward if: (A) the guardian was appointed with full authority over the person of the ward under Section 1101.151; or (B) the power is specified in the court order appointing the guardian with limited powers over the person of the ward under Section 1101.152. Keep in mind that a guardian cannot force a ward to work if he or she does not want to work.

Psychiatric commitment of the ward. Only a court can commit a ward to an inpatient mental health facility. Notwithstanding, a guardian of the person of a ward has the power to personally transport the ward or to direct the ward’s transport by emergency medical services or other means to an inpatient mental health facility for a preliminary examination in accordance with Subchapters A and C, Chapter 573, Health and Safety Code. So in effect, the guardian can drive the ward to the facility for an evaluation. The physicians can then examine the ward and make a recommendation to a mental illness court that the ward be forced to stay for an appropriate period of time.

Placement of the Ward in a locked-down nursing home. Except in cases of emergency, a guardian of the person may only place the ward in a more restrictive care facility if the guardian provides notice of the proposed placement to the court, the ward, and any person who has requested notice and after: (1) the court orders the placement at a hearing on the matter, if the ward or another person objects to the proposed placement before the eighth business day after the person’s receipt of the notice; or (2) the seventh business day after the court’s receipt of the notice, if the court does not schedule a hearing, on its own motion, on the proposed placement before that day. To the extent possible, you should consult and discuss any proposed change in the ward's residence with the ward. Placement of the ward in a residential care facility should be upon the suggestion of his or her treating physician.

Management of the Ward's Estate. A guardianship of the person and a guardianship of the estate are two very different animals. A guardian of the person has limited power to spend the ward's assets. With the exception of Social Security Benefits, VA Benefits, or some other federal program wherein the guardian also serves as a Representative Payee, a guardian of the person does not have the right to manage the ward’s estate. Therefore, if the ward inherits or receives a significant amount of money, please let your Dallas probate attorney know immediately. A guardian of the estate does have the power to manage, sell or otherwise dispose of the ward's estate, but only with court approval. A guardian of the estate should always ask his or her attorney before selling or disposing of any of the ward's assets.

Creation of a "Miller" Trust. Upon application to and order of the court, a guardian of the person can be given the power to establish a the power to establish a trust in accordance with 42 U.S.C. Section 1396p(d)(4)(B) or a "Miller" trust. A "Miller" trust is used to qualify a Medicaid applicant with income in excess of the eligibility limit for long-term care assistance from Medicaid. The Miller trust can be named as recipient of the individual's income, from a pension plan, Social Security, or other source and can direct that the income of the ward as defined by that section be paid directly to the trust, solely for the purpose of the ward’s eligibility for medical assistance.

Duties of the Guardian of the Person

The duties of the guardian of the person correspond with the rights of the guardian. Typically, however, the guardian of the person has the duty to provide care, supervision, and protection for the ward. They also have the duty to provide the ward with clothing, food, medical care, and shelter to the extent that the ward's resources allow. A guardian is an agent and does not become financially liable for the ward, however, a guardian should be very careful when signing contracts to provide care or services to the ward because those contracts often state that the signer will personally guarantee that the ward's bills will be paid.

Annual Reports. Your other primary duty is to file an Annual Report on the status of the Ward. This report advises the court of the ward's whereabouts ad condition. It also lets the court know that the guardian is alright and able to continue serving as guardian. Finally, the report lets the court know whether the guardianship needs to be changed in any way. Please contact your Dallas Probate Attorney if you have any questions about completing your annual report.

Change of address. You must inform the court immediately of any change of address of either the guardian or the ward. This can be in the form of a letter.

Designation of Successor Guardian. You should inform the court of your wishes in the event of your death or incapacity. Upon receiving notice that a successor guardian is required, the court will choose a successor guardian based upon the best interests of the ward and the requirements of the Texas Estates Code. Therefore, the court is not obliged to honor your wishes. Nevertheless, the court will always give strong consideration to your preferences, particularly if you are a parent of the ward. The Duran Firm can help you with this process.

Complete an Estate Plan. As you may know, the Ward’s eligibility for SSI, Medicaid and other government programs is often tied to the value of the ward’s estate. If the ward were to inherit even a modest amount of assets from you or anyone else, his or her eligibility for those programs may be harmed. Therefore, it is critical that you and the ward's family members have Last Wills and Testaments that either disinherit the ward, or provide that his or her share of the estate be placed into a Supplemental or Special Needs Trust. Please contact your Dallas probate attorney if you have any questions.

The Guardianship Bill of Rights

The 2015 Legislature added a Bill of Rights for Wards under guardianship. Section 1151.351 of the Texas Estates Code starts off by clarifying that "a ward has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where specifically limited by a court-ordered guardianship or where otherwise lawfully restricted."

The Section then goes on to state that "unless limited by a court or otherwise restricted by law, a ward is authorized to the following:

1. to have a copy of the guardianship order and letters of guardianship and contact information for the probate court that issued the order and letters;
2. to have a guardianship that encourages the development or maintenance of maximum self-reliance and independence in the ward with the eventual goal, if possible, of self-sufficiency;
3. to be treated with respect, consideration, and recognition of the ward’s dignity and individuality;
4. to reside and receive support services in the most integrated setting, including home-based or other community-based settings, as required by Title II of the Americans with Disabilities Act (42 U.S.C. Section 12131 et seq.);
5. to consideration of the ward’s current and previously stated personal preferences, desires, medical and psychiatric treatment preferences, religious beliefs, living arrangements, and other preferences and opinions;
6. to financial self-determination for all public benefits after essential living expenses and health needs are met and to have access to a monthly personal allowance;
7. to receive timely and appropriate health care and medical treatment that does not violate the ward’s rights granted by the constitution and laws of this state and the United States;
8. to exercise full control of all aspects of life not specifically granted by the court to the guardian;
9. to control the ward’s personal environment based on the ward’s preferences;
10. to complain or raise concerns regarding the guardian or guardianship to the court, including living arrangements, retaliation by the guardian, conflicts of interest between the guardian and service providers, or a violation of any rights under this section;
11. to receive notice in the ward’s native language, or preferred mode of communication, and in a manner accessible to the ward, of a court proceeding to continue, modify, or terminate the guardianship and the opportunity to appear before the court to express the ward’s preferences and concerns regarding whether the guardianship should be continued, modified, or terminated;
12. to have a court investigator, guardian ad litem, or attorney ad litem appointed by the court to investigate a complaint received by the court from the ward or any person about the guardianship;
13. to participate in social, religious, and recreational activities, training, employment, education, habilitation, and rehabilitation of the ward’s choice in the most integrated setting;
14. to self-determination in the substantial maintenance, disposition, and management of real and personal property after essential living expenses and health needs are met, including the right to receive notice and object about the substantial maintenance, disposition, or management of clothing, furniture, vehicles, and other personal effects;
15. to personal privacy and confidentiality in personal matters, subject to state and federal law;
16. to unimpeded, private, and uncensored communication and visitation with persons of the ward’s choice, except that if the guardian determines that certain communication or visitation causes substantial harm to the ward: A) the guardian may limit, supervise, or restrict communication or visitation, but only to the extent necessary to protect the ward from substantial harm; and B) the ward may request a hearing to remove any restrictions on communication or visitation imposed by the guardian under Paragraph (A);
17. to petition the court and retain counsel of the ward’s choice who holds a certificate required by Subchapter E, Chapter 1054, to represent the ward’s interest for capacity restoration, modification of the guardianship, the appointment of a different guardian, or for other appropriate relief under this subchapter, including a transition to a supported decision-making agreement, except as limited by Section 1054.006;
18. to vote in a public election, marry, and retain a license to operate a motor vehicle, unless restricted by the court;
19. to personal visits from the guardian or the guardian’s designee at least once every three months, but more often, if necessary, unless the court orders otherwise;
20. to be informed of the name, address, phone number, and purpose of Disability Rights Texas, an organization whose mission is to protect the rights of, and advocate for, persons with disabilities, and to communicate and meet with representatives of that organization;
21. to be informed of the name, address, phone number, and purpose of an independent living center, an area agency on aging, an aging and disability resource center, and the local mental health and intellectual and developmental disability center, and to communicate and meet with representatives from these agencies and organizations;
22. to be informed of the name, address, phone number, and purpose of the Judicial Branch Certification Commission and the procedure for filing a complaint against a certified guardian;
23. to contact the Department of Family and Protective Services to report abuse, neglect, exploitation, or violation of personal rights without fear of punishment, interference, coercion, or retaliation; and
24. to have the guardian, on appointment and on annual renewal of the guardianship, explain the rights delineated in this subsection in the ward’s native language, or preferred mode of communication, and in a manner accessible to the ward.

"It's not that you have a guardianship, it's how you use it."

Ideally, if a guardian is doing his or her job, the ward will not know or feel that a guardianship is in place. The guardian should allow the ward as much freedom and decision making ability as the ward can handle. Most of our clients do not lord the guardianship over the ward. Instead, they encourage independence whenever possible and only bring up the fact that a guardianship is in place with care providers, educators or government employees when it is necessary.