It’s vital to set up guardianship in your estate plan if you have minor children. You can choose a guardian to care for your minor children if you become unable to care for them due to an illness, accident, or death. A court ultimately decides who can serve as guardian, but your choice will be considered first.
Guardianship is sometimes necessary when going through a divorce involving complex family issues, such as domestic violence or substance abuse. Another family member may seek guardianship, or the court may appoint one if necessary.
Guardianship is also sought in adoption cases. Sometimes the court uses a Suit Affecting Parent Child Relationship (SAPCR) to give conservatorship (custody) of a child to someone who isn’t the biological parent. Conservatorship includes various child-raising rights similar to biological parents, but only the rights that a judge lists in the court order.
Being appointed as a guardian of a minor in Texas carries a lot of responsibility. Requirements and procedures are followed to satisfy the court that you are qualified to care for a child.
What is Guardianship in Texas?
In Texas, guardianship is a legal relationship established by a court of law that appoints a qualified adult to care for someone who is unable to care for themselves. The person in need of care may be an aging parent or a minor child.
4 Different Types of Guardianship in Houston and Across Texas
- Guardian of the person, full or limited: The guardian provides care, supervision, food, clothing, medical treatment, and shelter
- Guardian of the estate, full or limited: The guardian manages property and financial affairs
- Guardian of the person and estate: The guardian handles care AND property
- Temporary/emergency guardianship: A temporary guardianship is appointed until the court makes its decision
How Do the Courts Decide Who Will Be the Guardian?
Texas courts assign guardianships for minors using a top-down approach that gives preference to family members in the following order:
- Parents
- A person designated for guardianship by the last surviving parent
- The nearest ascendant to the child after the parents (usually grandparents, aunts, or uncles)
- A non-relative that the court determines is an appropriate guardian
Can I Designate a Guardian for My Children?
You can designate a guardian for your children should something happen to you. If you don’t name someone in advance, the court will appoint a guardian. It may not be the person you would choose.
Questions to Consider When Appointing a Texas Guardian:
- Who does the minor already have a relationship with?
- Does the potential guardian have a parenting style similar to yours?
- Does the potential guardian have other minor children?
- Do you have religious concerns or preferences?
- Would your minor child have to relocate far away?
- Would the minor child still have access to other family members?
What is the Process for Appointing a Permanent Guardianship in Texas?
The applicant (a family member, friend, or other interested party, such as Child Protective Services or Adult Protective Services) applies for Appointment of Permanent Guardian to the court, usually in the county where the child resides.
The court appoints an investigator to meet with the child, attorney of record, social workers, family members, and any other persons to determine if appointing a guardian is the best course of action.
An attorney ad litem is appointed by a court to represent and advocate on behalf of the child being placed under guardianship.
A court hearing is held, and there must be clear and convincing evidence that:
- Guardianship is in the best interest of the child
- The person to be appointed as guardian is eligible and qualified to fill the role
- It’s not solely to determine or change school districts
The Process for Appointing Emergency/Temporary Guardianship:
- The court receives information that a guardianship is necessary (report from Adult Protective Services, Child Protective Services, or other party) with an application for temporary guardianship of the person and/or estate
- A doctor’s letter is filed
- An attorney ad litem is appointed
- A hearing is held within 10 days of the application to appoint a temporary guardian or dismiss
- Emergency/temporary guardianship ends at 60 days
- At the end of the 60 days, the court decides if there is a need for permanent guardianship
- A final account is filed by the temporary guardian, followed by an application to close the temporary guardianship
If you have questions about guardianship for minors in the future or due to an immediate need, we can help. A guardianship or domestic violence attorney can resolve your issue.
At the Law Office of Edwin E. Lee, our Houston law firm practices estate planning and elder law, including Medicaid planning, asset protection, probate and trust administration, guardianship, family law, and related issues.
If you live in the Houston communities of The Heights, The Woodlands, Bel Air, or West University Heights, or the surrounding cities of Baytown, Humble, Cloverleaf, Pearland, Stafford, Deer Park, and more, contact us for a consultation with a guardianship or probate attorney in Texas today.