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Am I eligible to serve as a Guardian?

The United States and many other countries are experiencing an aging population.  While it is wonderful to be able to live longer and experience more that life has to offer, one of the challenges is properly caring for an elderly population as health declines.  Families of elderly loved ones desire to maximize the person's quality of life, allowing as much independence as possible while providing proper safeguards and caretaking to the extent necessary.  Legal mechanisms are available for properly respecting the person's legal rights of autonomy, while at the same time, ensuring that the person is properly cared for by someone with the legal authority to do so.  This legal mechanism is referred to as guardianship.

A person who seeks to become the guardian over another person must meet certain legal requirements, and satisfy the Probate Judge that he or she is eligible to serve as guardian.  Today's blog post will summarize some of the important eligibility requirements for becoming guardian over another person.

Parents as Natural Guardians

If the proposed Ward is a minor child, the biological parents of the child are the natural guardians of the child and have the right to make decisions for the child.  If the parents do not live together and cannot agree on which parent will care for the child, a Judge will decide based on the best interest of the child.  

Preference of Proposed Ward

The Court's first consideration in determining who should serve as guardian is the preference of the incapaticated person.  Despite the incapacity, the person may be able to understand and express to the Court and others who the preferred caretaker is.  Prior to becoming incapacitated, the person can designate, in writing, his or her preference, and can even disquality certain individuals from ever being appointed as guardian.

Disqualification Due to Incapacity or Inexperience

A person with incapacity, such as a minor or person with certain disabilities, cannot serve as guardian. Also, a person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the person, is disqualified.  

Disqualification Due to Unsuitability

Texas law states that a person may not be appointed as guardian if the Court finds the person to be "unsuitable".  This is a broad and vague standard, leaving the Judge broad discretion to disqualify the person for a variety of reasons. Consideration is given on a case-by-case basis.

Disqualification Due to Notoriously Bad Conduct

Texas law was amended to require, beginning in 2014, to disqualify an individual from serving as guardian if the person's conduct is "notoriously bad".  The law creates a presumption that notoriously bad conduct includes (1) a criminal conviction for any sexual offense; (2) aggravated assault; (3) injury to a child, elderly person or disabled individual; (4) abandoning or endangering a child; (5) terroristic threat or (6) continuous violence against the family of the ward or incapacited person.

Conflict of Interest

If the proposed Guardian has a lawsuit against the proposed Ward, is indebted to the proposed Ward or asserts a claim adverse to the proposed Ward or the proposed Ward's property, the person will be disqualified from serving.

If your loved one is incapacited and in possible need of the appointment of a guardian, understanding the role and qualification of a guardian is an important step in assisting the individual.  Christiansen Law Firm has assisted many families with guardianship matters, and can provide solid legal advice about your matter.  Contact the offices of Christiansen Law Firm in Houston or San Antonio to arrange a free consultation. 



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