Chapter 5-3 Guardianship

• Jurisdiction: United States

5-3 Guardianship

Guardianship is a court-supervised procedure for stripping authority from one person and placing it into the hands of another. Guardianship is seldom a voluntary procedure; rather, it can often be thrust upon an elderly person if and when he or she becomes incapacitated.

5-3:1 Avoiding Guardianship

Most people view guardianship as a procedure of last resort. In short, they view guardianship as something to be avoided at all costs. Experienced Texas attorney, Paul Premack, argues that guardianship is (1) expensive, (2) slow, and (3) "a detailed and often troublesome task for the person appointed to be guardian."³¹

This being the case, whenever possible, attorneys and their clients should seek to avoid guardianship. The best way to succeed at this, however, is for the proposed ward to engage in pre-planning. Typically, the person's execution of a durable power of attorney and a medical power of attorney should be sufficient to ward off future guardianship. The durable power of attorney would normally make guardianship of the estate redundant, since the principal would have already appointed someone to act on his or her behalf regarding his or her finances and property. Meanwhile, a medical power of attorney negates the need for guardianship of the person since the instrument would have already delegated the power to make health care decisions to someone of the ward's choosing.

5-3:2 Declaration of Guardian

While an individual's execution of both a durable power of attorney and a medical power of attorney should be sufficient to ward off guardianship, it remains true that someone might still try to force him or her into guardianship. Additionally, as we have already discovered, if a court of competent jurisdiction appoints a permanent guardian for the principal, both the durable power of attorney and medical power of attorney would become void.³²

While it is unlikely that someone would force an elderly person into guardianship knowing that the Elder has executed powers of attorney, it is quite possible that a disgruntled family member, unhappy about the proposed ward's decisions, would try to force a guardianship upon the Elder. The way to stop this well-meaning relative is for the Elder to make a "Declaration of Guardian."

A Declaration of Guardian is a legal document wherein someone tells the court who the person wants to serve as his or her guardian in the event he or she becomes incapacitated and/or a guardianship proceeding is ever commenced against him or her.³³ The Declaration allows the declarant to appoint a guardian of his or her estate and a guardian of his or her person.³⁴ The declarant may appoint one person to fill each role, or could have the same person fill both. Of much importance, the declarant could disqualify an individual from ever becoming one of his or her guardians.³⁵

The Texas legislature has developed a form for use in the formation of a Declaration of Guardian. However, the form is not exclusive. While it may be used, the legislature does not require that it must be used.³⁶ A sample form and accompanying self-proving affidavit is included in Appendix 10. Appendix 11 contains a sample alternative to the self-proving affidavit.

5-3:2.1 Filing of Declaration and Self-Proving Affidavit

No requirement exists that the Declaration be filed with the court in advance. However, the proposed guardian must file the document when he or she goes to court to be appointed guardian (if the need arises). Timing is important: the Declaration must be filed after someone starts a guardianship proceeding (by filing an Application for Guardianship) and before the court appoints a guardian.³⁷

5-3:2.2 Revocation of the Declaration of Guardian

The declarant may revoke the Declaration of Guardian by using any of the methods authorized for revoking a Last Will and Testament—i.e., the declarant could destroy it, cancel it, or have someone destroy or cancel it in his or her presence.³⁸

5-3:2.3 Effect of Divorce

If a declarant designates his or her spouse to serve as guardian and the declarant is subsequently divorced from the spouse before a guardian is appointed, the provision of the declaration designating the spouse is effectively revoked and has no effect.³⁹

5-3:2.4 Alternate or Other Court-Appointed Guardian

If the guardian designated in the declaration does not qualify, predeceases the declarant, refuses to serve, resigns, or is otherwise unavailable to serve as guardian, the court shall appoint the next eligible alternate guardian to serve as guardian.⁴⁰ However, if none of the eligible alternate guardians named in the declaration are available to serve, the court shall appoint someone else as guardian.⁴¹

5-3:2.5 Private Professional Guardians

To provide a sufficient pool of guardians to meet the need for guardianships in Texas, the Texas legislature has created a class of private professional guardians. These individuals must be certified under Subchapter C, Chapter 155 of the Texas Government Code.⁴² In addition to being certified as professional guardians, individuals wishing to serve in this capacity must also annually apply for a certificate of registration from the Judicial Branch Certification Commission.⁴³

5-3:2.5a Application Requirements

To apply for a certificate of registration, a private professional guardian must submit a sworn statement containing the following information:

1. his or her place of residence;

2. his or her business address and business telephone number;

3. his or her educational background and professional experience;

4. at least three professional references;

5. the name of each ward for whom he or she will be serving as guardian;

6. the aggregate fair market value of the property of all wards that the private professional guardian is or will be managing;

7. whether he or she has ever been removed as a guardian by the court or has resigned as guardian in a particular case, and if so, a description of the circumstances leading up to the removal or resignation; and

8. the certification number or provisional certification number issued to the private professional guardian by the guardianship certification program of the Judicial Branch Certification Commission.⁴⁴

The application must be made out to the clerk of the county having venue of the proceeding for the appointment of a guardian for the proposed ward, and must be accompanied by a nonrefundable fee of $40.⁴⁵

5-3:2.5b Registration Renewal

The certificate of registration must be renewed annually.⁴⁶ Specifically, an application for renewal must be completed during December of the year preceding the year for which the renewal is requested.⁴⁷

5-3:2.5c Certification and Registration of Other Individuals

In addition to private professional guardians, Texas requires that other individuals involved in the guardianship process be certified by the JBCC. These include:⁴⁸

• individuals who will provide guardianship services to a ward of a private professional guardian on the guardian's behalf;

• individuals, other than volunteers, who will provide guardianship services, or other services under Section 161.114, Human Resources Code, to a ward of a guardianship program or the Department of Aging and Disability Services on the program's or department's behalf; and

• persons who at any time supervise direct providers of guardianship services, unless they are exempt under Section 155.001(6) of the Government Code.

The JBCC also lays out the requirements for the certification and registration of these individuals—and the private professional guardians as well.⁴⁹

5-3:2.5d JBCC Requirements for Certification of Guardians

To be eligible to become a certified Guardian, someone must:

1. satisfy the requirements of Sections 3.0 and 7.2 of the JBCC Rules;

2. be at least 21 years of age;

3. be a high school graduate or possess the GED equivalent;

4. complete the online Texas Guardianship training module located on the Register a Guardianship page of the JBCC website per Section 7.2(b)(8) of the JBCC Rules, then upload a copy of the completed training certificate to his or her application. The individual must maintain a copy of the certificate of completion for a minimum of 3 years;

5. have two years of relevant work experience related to guardianship or these education/training requirements:

(a) have at least a bachelor's degree in a field relevant to guardians (examples: nursing, social work and psychology), or

(b) completion of a Commission approved course curriculum or training specifically related to guardianship (currently the only approved course curriculum is offered through HHSC for their employees);

6. successfully pass a Commission approved exam, after no more than 4 attempts; and


7. meet all attestation requirements established in section 7.2 (b) (6-7) of the JBCC Rules.

Effective September 1, 2016, anyone wishing to register to take the Commission approved exam referred to in item 6 must first submit an application for certification, pay the certification fee, and submit completed fingerprints for a criminal history background check.

5-3:2.5e JBCC Requirements for Provisional Certification

To be eligible to become a provisionally certified Guardian, an individual must:

1. satisfy the requirements of Sections 3.0 and 7.2 of the JBCC Rules;

2. be at least 21 years of age;

3. be a high school graduate or possess the GED equivalent; and

4. meet all attestation requirements established in section 7.2 (b) (6-7) of the JBCC Rules.⁵⁰

Hence, to apply to become a provisionally certified Guardian, once all eligibility requirements have been met, an individual must:

1. submit the application for provisional certification;

2. pay the certification fee; and

3. pass a criminal history background check with DPS and the FBI.⁵¹

5-3:2.5f JBCC Requirements for Certification of Military Spouses, Military Service Members, and Military Veterans

The JBCC has special rules whereby military applicants may apply...