Overview of Temporary Guardianship in Texas
Temporary guardianship in Texas is a legal arrangement intended to provide immediate protection for a child or an adult when a court-appointed guardian cannot be readily designated. When circumstances arise that require guardianship but a full-blown guardianship proceeding would be too time-consuming, Texas law allows for the appointment of a temporary guardian to meet urgent needs like taking care of a child, managing their estate, or dealing with the affairs of an incapacitated adult. In this way, temporary guardianship can help mitigate dangerous and costly disputes over a loved one’s care .
Temporary guardianship is limited in time, scope, and authority. Some circumstances where a temporary guardian may be appropriate are:
The purpose of appointing a temporary guardian is to fill the gaps that arise between the incapacitating event and the permanent guardianship named in a will, or between incapacitation and securing a court-appointed guardian. A temporary guardian provides time to make decisions on the future of the individual’s (or estate’s) legal and physical well being, without fear that important functions are going neglected during the interim.
Legal Basis for Non-Court Guardianship
The Texas Probate Code, Sections 683-684, outlines the ability for a person to establish a guardianship without court involvement in emergency situations and the procedures associated with that.
Section 683. Emergency Guardianship Without Court
Section 683. Temporary Guardianship Without Court refers to the ability of a person to have themselves or an estate of an incapacitated person without applying to the court. A person can appoint a guardian of the estate immediately when a person determines that the person is incompetent and temporary emergency protections are required. The authority and limitations of that appointment are outlined below:
(a) Designation of Guardian
A person can appoint a guardian of the estate with or without court approval by signing and filing a written instrument designating the guardian of the estate for a ward under this title.
(b) Who has Authority
Any person 18 years or older, the person’s spouse, or any person that has a claim against the person requiring the appointment of a guardian under this chapter may be designated as the temporary guardian of the estate.
(c) Designation of Guardian of Person
A person who has been designated as a guardian of the estate for a ward under this section may, without court approval, designate the guardian of the person for the ward, and the appointment of the guardian of the person also will be valid even if the authority of the temporary guardian of the estate terminates.
(d) Authority without a Bond
In appointing a guardian under this section, the court does not require the person appointed to post a bond.
(e) Termination of Authority
The authority given under this section terminates after 30 days from the date of appointment in the absence of an order appointing a permanent guardian needed under Chapter 1202.
It is important to note that the appointment of the guardian of the estate guaranteed under this section only affords the appointment of a temporary guardian valid for not more than 60 days.
Section 684. Notice; Reports on condition of Ward
The person who filed or has been designated as the guardian of the estate under Chapter 683 of this title must: (1) before the expiration of the seventh day, give notice in writing to the court and all parties to the proceeding of the guardian’s appointment; and (2) file a report with the court not later than the 11th day after the date of the temporary guardian’s appointment, stating fully the condition of the ward and other relevant facts concerning the guardianship.
Limitations on the Appointment
While this process does provide for the appointment of a temporary guardianship without court involvement, it is limited in what actions can be taken during those 30 or 60 days.
Under Texas Probate Code, §683(a), "the guardian of the estate appointed under this section has the authority to take any protective action with respect to the ward’s estate, except as limited by Sections 682 and 68312."
Section 682 also does not allow a person with authority to manage the estate to do any of the following:
(1) mortgage, lease, or otherwise encumber the estate’s assets; (2) sell, transfer, or otherwise dispose of any of the estate’s assets, except in the regular course of a hobby or hobby business; (3) make material decisions concerning the conservation, partitioning, expenditure, or investment of the estate’s assets other than the expenditure of funds for basic necessities; or (4) commence a proceeding or claim on behalf of the estate, except for a proceeding or claim necessary to obtain a protective order or establish the capacity of a person or revive the license of an incapacitated person.
How to Obtain Temporary Guardianship Without the Court
To establish temporary guardianship in Texas without the use of the courts, you must act quickly and with careful preparation. Before you can act on behalf of an incapacitated person, it is imperative that any existing Powers of Attorney are examined. In most cases, this will solve your problem without needing to go any further. A Power of Attorney allows an agent to manage the affairs of the principal at that individual’s discretion, as set out in the legal document. Without that authority in place, a temporary guardianship may be the next best option.
The easiest way to acquire a temporary guardianship outside the courts would be through a durable Power of Attorney. This document allows the principal the freedom to grant financial power to the agent when he or she no longer has the capacity to do so. Effectively, the principal appoints an "attorney in fact" who will manage his day-to-day affairs when he is no longer able to do so. The attorney in fact might be a family member, close friend, a lawyer, or a financial planner.
A temporary guardianship also can be put in place through a Declaration of Guardian for Personal Needs and a Declaration for Medical or Dental Treatment. In essence, these documents allow an agent to make medical, financial, or after-death decisions independent of the courts.
You may also find it beneficial to speak with an attorney to prepare an Affidavit of Person Seeking Temporary Guardianship, as this can prevent the need to appear in court to obtain a temporary guardianship. Attorneys can draw up the necessary language for this particular affidavit as well as others. The assistance of an attorney becomes especially important if you need to make decisions regarding the end of life or the management of an estate. Even with these affidavits in place, it is important to note that there are limits as to how long they remain in effect before the next step should be taken.
Preparing a proclamation is another part of establishing temporary guardianship without the court. These documents serve as temporary orders until a temporary guardianship is obtained. They lay down the authority of the person seeking the temporary appointment while also holding the third parties accountable for their actions towards the declarant.
In order to navigate temporary guardianship without court in Texas, it is recommended to have an estate planning lawyer at your side.
Pros and Cons of Non-Court Guardianship
One of the few significant advantages to the procedure for non-court Temporary Guardianship is that this method allows a temporary guardian to be appointed quickly. In exigent circumstances, this can be critical. However, for that reason, it can also introduce significant risks for both the proposed ward and the applicant.
For example, the temporary guardian may make a poor choice in who he or she appoints. The temporary guardian may grant or sell the property or assign the ward’s business interests without the proposed ward’s knowledge or consent. And to further complicate things, the specific acts appointing the temporary guardian may be valid, but the terms of those acts may be so expansive as to expose the proposed ward to a loss of property or rights .
Conversely, even if the proposed guardian’s choice of temporary guardianship procedures is valid, the actions it authorizes may expose the proposed ward to liability. Liability exposure for a person that is an essential part of the "care, control, and welfare" of the proposed ward may be problematic, especially if the proposed ward has not consented to appoint that person.
Furthermore, a proposed guardian may later discover that the acts of the temporary guardian cannot be undone and will have lasting consequences.
For these reasons, it is important to choose carefully who you select as your temporary guardian . . . and exactly what powers you give that temporary guardian.
Common Situations for Temporary Guardianship
Temporary guardianship in the state of Texas may be sought for numerous reasons, each unique to the individual circumstances involved in the situation. Some of the most common situations for which a temporary guardianship without a court hearing is sought in Texas include:
Family Emergencies
A family emergency is defined as "an event that poses a significant risk of loss or damage." In the context of family emergencies, such an event may involve the sudden incapacitation or death of a parent or caregiver. In such circumstances, taking care of a child may become an immediate priority. Situations that necessitate the emergency guardianship of your kids include the unexpected and sudden death of the guardian and the severe incapacity or disability of the person who cares for your child. It may also be necessary when your child is in danger, such as in the case of domestic violence or when mistrust is present regarding a parent’s behaviors such as substance abuse, domestic violence or a hazardous living environment.
Parental Incapacitation
A child cannot be a responsible adult. When a child is out of school, he simply spends time with his friends. Many kids do not accept the responsibilities of adulthood at a young age. In fact, some parents and caregivers may encourage their children to avoid the arduous demands of adulthood by playing video games or watching television. When a parent cannot parent, he is deemed "incapacitated." Parents may be incapacitated due to addiction, serious addiction to drugs or alcohol, long-term incarceration and out-of-control gambling. Parental incapacity may also arise from fatal accidents, debilitating illness or psychiatric disorders.
Domestic Violence
In cases of domestic violence, access to a child may be denied to the abusive parent. It may be necessary to seek temporary guardianship for a child when a parent has been injured, hospitalized or imprisoned. A short-term guardianship also may be required when a parent has committed suicide.
Potential Situations Requiring a Guardian Without Court Hearing
Some people might be under the impression that guardianship can be requested in any situation. If a child or an adult lacks capacity, guardianship may be requested on one single petition. However, it is not always in the best interest for an incapacitated person to have a guardian. In such situations, it may be necessary to appoint a person who handles the affairs of the incapacitated person on a temporary basis. It may only be necessary to temporarily suspend guardianship when:
The scope of the eventual guardianship is difficult to determine.
A person is requesting a regular guardianship.
It is not clear whether a guardian is needed.
Obtaining Legal Assistance for Non-Court Guardianship
As with any legal decision, the pros and cons of kinship care without the oversight and approval of the court should be weighed carefully. In certain situations, especially if the decision to enter into a non-court kinship care arrangement is based on any number of concerns , often it’s best to have an attorney draft or review the document suited to your specific situation and the facts involved.
When May Legal Assistance Be Necessary or Helpful?
There are certain circumstances where seeking legal assistance when entering into a non-court guardianship arrangement may be important: There are certain situations where entering into a non-court guardianship arrangement may be legally or financially advantageous to both the relatives caring for a child and the child’s parent(s). Consulting with an attorney who understands adoption and child welfare issues is the best way to ensure that the arrangement is one that legally protects everyone and is in the child’s best interests.