Guardianship is based on State law and every statement made by me is limited to a court proceeding in Texas.
An Attorney Ad Litem is appointed by a Court in every guardianshipproceeding. The attorney ad litem’s function is to defend the proposed Wardagainst the creation of the Guardianship and give advice to the proposedWard.
A Guardian Ad Litem is an attorney appointed by a court to act in aproposed Ward’s best interest. This is normally done when more than oneperson has applied to be named as permanent guardian.
A guardian is a person appointed by a probate court to be responsiblefor the care and supervision of an incapacitated person. Guardianships can befor the person only, estate only or both. It can be limited to certain powers ora "full" appointment limiting all rights of the ward and granting all legalresponsibilities to the Guardian.
An incapacitated person is an adult who because of a physical ormental condition, is (a) substantially unable to provide food, clothing orshelter 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 minoris incapacitated as a matter of law.
Least Restrictive Alternative. The American Disabilities Act waspassed in 1990. It requires that services provided to persons with disabilitiesmust be provided by the "least restrictive alternative". This concept wastransformative and first implemented in Texas Guardianship Code in 1993."The entire guardianship process is based on the concept that the court and theofficers of the court must seek any less restrictive alternatives to a fullguardianship 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 changeto the Guardianship Code. Beginning in 2015 an applicant must show thatalternatives to use of Guardianship are not viable for providing the necessarycare and supervision of a proposed Ward. Supports and services are availableformal and informal resources and assistance that enable a person to: 1) meetthe person’s needs for food, clothing or shelter; 2) care for the person’sphysical or mental health; 3) manage his or her financial affairs; or 4) makepersonal 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 doctormust complete before a Court can find that a person is incapacitated based onmedical findings. It must be submitted to the Court clerk. The certificationmust be dated within 120 days of the application for guardian and based on anexamination 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, basedon a doctor’s certification that the patient has been examined by the physicianand describing the nature, degree and severity of the proposed ward’sincapacity, including any functional deficits. Tex. Est. Code 1101.103.