The Guardianship Process
Denton, TX Family Law Attorney David S. Bouschor, II talks about the guardianship process.
Phone: (940) 323-1300
When a client comes to me for a guardianship, the first things that we start to do is we gather information. A guardianship you have to prove legally a level of incapacity by using medical evidence. So you’re taking medical evidence and trying to use it in a legal world. So you have to get a doctor involved. You have to get the doctor to either give you medical records or fill out forms, or something along those lines so that you can see what the doctor says is the level of incapacitation. That’s the first issue with any of them.
Once you have a situation where you have somebody who you believe is incapacitated and you have the evidence for that – it’s not what you know, it’s what you can prove – then you have a process where you file an application with the – in Denton we have a Statutory Probate Court. You file an application. And then lots of wheels start into motion. There will be an ad litem, who is an attorney that’s appointed for the proposed ward. And that ad litem will go in and do an investigation of their own to determine whether the person is actually incapacitated. There will be a court investigator that will be assigned to your case. That is a county employee that will actually go and also do an investigation to determine not only if there’s an incapacity, but to what level.
All this investigation process happens. And then, and only then, there will a hearing in front of the court. Because you’re taking away somebody’s constitutional rights, this hearing is a big deal. It’s basically a trial. And if the ward requests it, you can have a jury trial. So it can be an hour-long trial or it can be a five-day trial. It just depends on the complicated of the case.
When you’re done with that trial, if you are successful and the guardianship is granted, then an order is signed by the court. That order allows you to get letters. The order appoints you, and then you have to get qualified. To get qualified, you have to take an oath, which is I swear to do a good job. You normally have to be bonded, which depending on the amount of property involved, the bond can be $250 to $250,000. And then when all that’s done, you get letters. Those are your documents that allow you to act for the now ward. Those letters are good for a year. You have to report to the court at least at the end of the year and get your letter basically refreshed every 365 days.
There’s a lot of other steps and nuances to it, but basically that’s the broad-brush procedure.