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What Rights Does A Proposed Ward Have?

  • Wade Christiansen
  • Sun, 09/23/2018 - 10:23am

As the population in the United States continues to age, more and more families are facing questions about guardianship.  When an elderly family member begins to decline in health, the concerned family must decide whether a guardianship will be necessary.  In making the difficult decision about pursuing guardianship, families need to fully understand the rights of the elderly family member (known in guardianship law as a proposed "ward").  Today's blog will list the basic rights of every proposed ward in a Texas guardianship matter.

First and foremost, families should understand that a proposed ward retains all rights, benefits, responsibilities and privileges granted by law except as specifically limited by court order.  These rights include the following:

1.  to have a copy of the guardianship order and letters of guardianship and contact information for the probate court that issued the order and letters;

2.  to have a guardianship that encourages the development or maintenance of maximum self-reliance and independence in the ward with the eventual goal, if possible, of self-sufficiency;

3.  to be treated with respect, consideration, and recognition of the ward's dignity and individuality;

4.  to reside and receive support services in the most integrated setting available, including home-based or community based settings;

5.  to consideration of the eward's current and previously stated personal preferences, desires, medical and psychiatric treatment preferences, religious beliefs, living arrangements, and other preferences and opinions;

6.  to financial self-determination for all public benefits after essential living expenses and health needs are met and to have access to a monthly personal allowance;

7.  to receive timely and appropriate health care and medical treatment that does not violate the ward's rights granted by the constitution and laws of Texas and of the United States;

8.  to exercise full control of all aspects of life not specifically granted by the court to the guardian;

9.  to control the ward's personal environment based on the ward's preferences;

10.  to complain or raise concerns regarding the guardian or guardianship to the court, including living arrangements, retaliation by the guardian, conflicts of interest between the guardian and services providers, or a violation of any rights under this section;

11.  to receive notice in the ward's native language, or preferred mode of communication, and in a manner accessible to the ward, of a court proceeding to continue, modify, or terminate the guardianship and the opportunity to appear before the court to express the ward's preferences and concerns regarding whether the guardianship should be continued, modified, or terminated;

12.  to have a court investigator, guardian ad litem, or attorney ad litem appointed by the court to investigate a complaint received by the court from the ward or any person about the guardianship;

13.  to participate in social, religious, and recreational activities, training, employment, education, habilitation, and rehabilitation of the ward's choice in the most integrated setting;

14.  to self-determination in the substantial maintenance, disposition, and management of real and personal property after essential living expenses and health needs are met, including the right to receive notice and object about the substantial maintenance, disposition, or management of clothing, furniture, vehicles, and other personal effects;

15.  to personal privacy and confidentiality in personal matters, subject to state and federal law;

16.  to unimpeded, private and uncensored communication and visitation with persons of the ward's choice, except that if the guardian determines that certain communication or visitation causes substantial harm to the ward, (A) the guardian may limit, supervise, or restrict communication or visitation, but only to the extent necessary to protect the ward from substantial harm; and (B) the ward may request a hearing to remove any restrictions on communication or visitation imposed by the guardian under Paragraph (A);

17.  to petition the court and retain counsel of the ward's choice who holds proper certification, to represent the ward's interests for capacity restoration, modification of the guardianship, the appointment of a different guardian, or for other appropriate relief, including a transition to a supported decision-making agreement;

18.  to vote in a public election, marry, and retain a license to operate a motor vehicle, unless restricted by the court;

19. to personal visits from the guardian or the guardian's designee at least once every three months, but more often, if necessary, unless the court orders otherwise;

20.  to be informed of the name, address, phone number and purpose of Disability Rights Texas, an organization whose mission is to protect the rights of, and advocate for, persons with disabilities, and to communicate and meet with representatives of that organization;

21.  to be informed of the name, address, phone number, and purpose of an independent living center, an area agency on aging, an aging and disability resource center, and the local mental health and intellectual and development disability center, and to communicate and meet with representatives from these agencies and organizations;

22. to be informed of the name, address, phone number and purpose of the Judicial Branch Certification Commission and the procedures for filing a complaint against a certified guardian;

23.  to contact the Department of Family and Protective Services to report abuse, neglect, exploitation, or violation of personal rights without fear of punishment, interference, coercion, or retaliation; and

24.  to have the guardian, on appoaintment and on annual renewal of the guardianship, explain the rights deliniated in this subsection in the ward's native language, or preferred mode of communication, and in a manner accessible to the ward.

If your family member may benefit from the appointment of a guardian, you should seek to understand the legal and personal ramifications of a guardianship before proceeding.  The guardianship attorneys of Christiansen Law Firm have significant experience handling guardianship matters, and can provide needed guidance for your family circumstances.  Contact the attorneys of Christiansen Law Firm in Houston or San Antonio for additional information.


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