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GUARDIANSHIP DEFINITIONS

Guardianship is based on State law and every statement made by me is limited to a court proceeding in Texas.

DEFINITIONS:

An Attorney Ad Litem is appointed by a Court in every guardianship proceeding. The attorney ad litem’s function is to defend the proposed Ward against the creation of the Guardianship and give advice to the proposed Ward.

A Guardian Ad Litem is an attorney appointed by a court to act in a proposed Ward’s best interest. This is normally done when more than one person has applied to be named as permanent guardian.

A guardian is a person appointed by a probate court to be responsible for the care and supervision of an incapacitated person. Guardianships can before the person only, estate only or both. It can be limited to certain powers or a "full" appointment limiting all rights of the ward and granting all legal responsibilities to the Guardian.

An incapacitated person is an adult who because of a physical or mental condition, is (a) substantially unable to provide food, clothing or shelter for him or herself, b) care for the person’s own physical health or c)manage the person’s own financial affairs. Tex Est Code 1002.017. A minor is incapacitated as a matter of law.

Least Restrictive Alternative. The American Disabilities Act was passed in 1990. It requires that services provided to persons with disabilities must be provided by the "least restrictive alternative". This concept was transformative and first implemented in Texas Guardianship Code in 1993."The entire guardianship process is based on the concept that the court and the officers of the court must seek any less restrictive alternatives to a full guardianship if they exist and are applicable. Tex. Est. Code § 1001.001."Tex. Guardianship Manual, 4thEdition.

Supports and Services. This is the newest and biggest recent change to the Guardianship Code. Beginning in 2015 an applicant must show that alternatives to use of Guardianship are not viable for providing the necessary care and supervision of a proposed Ward. Supports and services are available formal and informal resources and assistance that enable a person to: 1) meet the person’s needs for food, clothing or shelter; 2) care for the person’s physical or mental health; 3) manage his or her financial affairs; or 4) make personal decisions about voting, driving a vehicle, residence or marriage. Tex. Estates Code 1002.031.

A Physician’s Certificate is a legislatively created form that a doctor must complete before a Court can find that a person is incapacitated based on medical findings. It must be submitted to the Court clerk. The certification must be dated within 120 days of the application for guardian and based on an examination within 120 days of the application.

There can be no Guardian appointed unless a Court finds that the proposed Ward lacks the capacity, or lacks sufficient capacity with supports and services, to make personal decisions regarding residence, voting, operating a motor vehicle and marriage. There must be medical evidence of incapacity for a guardianship to be created.

A ward is a person found by a probate court to be incapacitated, based on a doctor’s certification that the patient has been examined by the physician and describing the nature, degree and severity of the proposed ward’s incapacity, including any functional deficits. Tex. Est. Code 1101.103.