Guardians & Conservators
There are occasions when an Adult (for example, an elderly parent with dementia) needs someone to take care of them permanently. Likewise, there are occasions when a child needs a guardian to care for him or her temporarily (as, for example, when the parents are both military stationed overseas, or a single parent is incapable of caring for a child because of drug abuse or medical problems).
The Probate Court of Harris County handles guardianship and conservatorship cases of Adults and Minors, both temporary and permanent.
It is always helpful to have a Lawyer represent you in Probate Court proceedings. While temporary guardianships of Minors can be relatively straightforward and might be handled on your own, any of the permanent Guardianships or Conservatorships (for adults or minors) are quite complicated and have very specific rules which must be precisely followed. If you are filing a Petition for Permanent Guardianship or Conservatorship, the Court STRONGLY ADVISES that you retain a lawyer to file the Petition and handle the proceedings for you. The Probate Court cannot give you legal advice about your case and cannot assist you in filling out your paperwork.
The following are general comments about the different Guardianship and Conservatorship proceedings that can be filed in this Court:
GUARDIANSHIP AND/OR CONSERVATORSHIP OF INCAPACITATED ADULTS
In this proceeding, someone seeks authority from the Court to care for an incapacitated adult (as, for example, an elderly parent suffering from dementia), and/or manage their assets and finances.
- An incapacitated adult (sometimes referred to as a Ward) is one who, because of physical or mental illness, is no longer capable of making reasonable and rational decisions concerning his or her person or of managing his or her money and property.
- A Guardian makes decisions concerning the person of the Ward (that is, for the support, care, education and well-being of the Ward).
- A Conservator (sometimes called “guardian of the property”) manages and make decisions concerning the income and property of the Ward. A Conservator is required to exercise ordinary diligence in dealing with the ward’s property and may be held liable for any loss resulting from a lack of such diligence.
To be appointed Guardian or Conservator, a Petition must first be filed. The Initial Filing Fees ($100.) must be paid when you the petition is filed. The person seeking guardianship and/or conservatorship must complete all pages of the petition. Two or more petitioners, both of whom know the incapacitated adult and can testify that he or she is in need of help, must file the petition. If only one person files the petition, they must include an affidavit (a sworn statement) completed by a physician, psychologist, or licensed clinical social worker based upon an examination of the incapacitated adult within 15 days prior to the filing of this petition. The petitioner must present enough evidence to prove to the Court that the proposed ward lacks the ability to manage their care or their finances, and lacks the ability to make or communicate significant responsible decisions, and the guardianship or conservatorship is needed for the well-being of the proposed ward. The appointed Guardian of the person will be required to file Personal Status Reports every year. The appointed Conservator may have to post a Bond, and make Inventory and Annual Returns.
Once the Petition is filed with the Court, it is reviewed by the Clerk or the Judge. If everything in the petition looks complete, the case will proceed generally along the following lines:
- The clerk schedules a court appointed Physician, Psychologist, or Licensed Clinical Social worker to visit and evaluate the proposed ward.
- The Harris County Sheriff’s Department delivers (“serves”) a copy of the Petition on the Proposed Adult Ward.
- The clerk also assigns a court appointed attorney to represent the proposed ward, unless the Court is notified within two-days that the proposed Adult Ward already has a lawyer to represent his/her interests.
All persons of interest are properly notified, as required by law, that the Petition has been filed.
The Court may require background checks on the person seeking to become guardian and/or conservatorship.
- After all notices and services are rendered, the Clerk contacts the petitioner, or the petitioner’s attorney, to schedule a hearing date.
- If, based on the evidence presented, the Court finds that the Proposed Ward is in need of a guardian and/or conservator, and that the Petitioner is competent to serve, an order will be signed and the Petitioner will take Oath of Office. Letters of Guardianship and or Conservatorship are then issued.
Temporary Guardianship of Minor
Temporary Guardianship orders authorize individuals to care temporarily for minor children when parents are unable to care for them. Usually, a family member – a grandparent, aunt, uncle, or other adult – asks the Court to be appointed as Temporary Guardian. Once appointed, the guardian is authorized to register the minor child in school, authorize medical treatment for a child, and make other important decisions concerning the minor’s health and welfare.
It is important to note that, before a Temporary Guardian can be appointed, the parents of the child must either give their consent to the guardianship or be given a chance to file and objection to it.
To begin the process, a Petition must be filed with the Probate Court by the person (or persons) who wish to be named guardian.
There is a fill-in-the-blank Petition for Temporary Guardianship that can be found at http://gaprobate.gov/ at the tab which says “Standard Forms.” (Once there, you will choose which format you wish to use – Word Perfect, Word, PDF, or Fillable PDF. When you make that choice, the menu for Forms will appear). CHOOSE FORM #28.
The person seeking guardianship must complete all pages of the petition. If the parents are willing to sign the acknowledgement and consent to the petition, their signature MUST either be notarized, or witnessed by a Probate Clerk. We cannot accept notarized letters from a parent.
As part of your Petition, you will need to show or provide a certified copy of the minor’s birth certificate to the Court.
If a parent of the minor is deceased, you will need to provide evidence — a death certificate, obituary, or funeral program — to prove the parent’s passing.
If the guardianship is needed for more than one minor, and the minors have the same mother and father, you can file one petition. If the minors have different parents, you will have to file a petition for each minor and pay the required filing fees for each petition. To qualify as a guardian of a minor, you must be a U.S. citizen, permanent resident, or have poof of permanent status in the U.S.
Before you can be appointed Guardian, you will be required to consent to and pass a criminal background check.
When you file your petition, you must pay filing fees at the same time. The Clerk or the Judge will review your petition to make sure that it has been properly prepared. The clerk determines whether or not notification (called a “citation”) has to be issued to one or both of the parents. If it is required, it will be personally delivered to the parent or published in the newspaper, depending on the circumstances.
If either parent objects to the petition, the Petition will be generally be dismissed. If neither parent objects, the Clerk will schedule a time for the Petitioner to meet with the Judge. The Judge will make a determination on the Petition and, if appropriate, issue an Order appointing a Guardian. Any balance of court costs must be paid prior to the Order and Letters of Guardianship being issued.
Permanent Guardianship of Minor
Permanent Guardianship authorizes an individual to care for a minor child when both parents of the child are deceased. The appointment of a Permanent Guardian is appropriate when the minor has no natural guardian, testamentary guardian, or permanent guardian, or when the parental rights of any living parent have been terminated by a court.
To begin the process, a petition must be filed seeking guardianship of the child by the person who wishes to be named guardian. The person seeking the Guardianship must file the petition in the county where the child is located or where the proposed permanent guardian is a resident.
There is a fill-in-the-blank Petition for Permanent Guardianship that can be found at http://gaprobate.gov/at the tab which says “Standard Forms.” (Once there, you will choose which format you wish to use – Word Perfect, Word, PDF, or Fillable PDF. When you make that choice, the menu for Forms will appear). CHOOSE FORM #29.
The person seeking guardianship must complete all pages of the petition. You will need to list the three nearest relatives of the minor child. There is an additional cost if the Court determines there are parties who need to be given legal notice, or “citation,” concerning the petition. (For instance, if the minor was born out of wedlock and has a biological father still alive who has not legitimated the child or had his rights terminated, the father would be entitled to notice of the Petition and would be entitled to file an objection. If he legitimates the child and files an objection to the Petition for Guardianship, the Court will generally dismiss the Petition.) As part of the filing, you will need to show or provide to the Court a certified copy of the minor’s birth certificate and copies of the parent’s death certificate, obituary, or funeral program. If the guardianship is needed for more than one minor, and the minors have the same mother and father, you can file one petition. If the minors have different parents, you will have to file a petition for each minor and pay the required filing fees for each petition. To qualify as a guardian of a minor, you must be a U.S. citizen, permanent resident, or have poof of permanent status in the U.S. Before you can be appointed Guardian, you will be required to consent to and pass a criminal background check.
When the Petition is filed and the filing fees are paid, the Judge or the Clerk will review the Petition. The clerk determines whether or not a citation has to be issued, prepares any needed citation or notice, and has the same published or served. There is additional costs for the issuance or service of citations.
Once the Petition has been filed and reviewed, and notice has been given to proper parties, if there are no objections, the Petitioner will appear in Court for a hearing. (These hearings are often held in the Judge’s office rather than the courtroom.) Upon the Judge’s determination, the guardianship will be granted and Orders, Oath and Guardianship Letters will be signed.
Any balance of court costs must be paid prior to the Order and Letters of Guardianship being issued.
Conservatorship of Minor, with Bond
There might be times when a minor inherits money, is awarded money in a lawsuit or settlement, is named beneficiary in an insurance policy or is otherwise entitled to receive money or property. When the amount of funds is over $15,000.00, a Conservator must be appointed by the Court to care for the money or property until the child is 18 years old. A parent can be appointed Conservator of a child’s estate but, as with any other Conservator, is accountable to the Court and might be replaced if he or she does not abide by legal guidelines.
Georgia’s Probate Courts have jurisdiction over the appointment and supervision of Conservators of minors.
There is a fill-in-the-blank Petition for Conservatorship of a Minor that can be found at http://gaprobate.gov/v/ at the tab which says “Standard Forms.” (Once there, you will choose which format you wish to use – Word Perfect, Word, PDF, or Fillable PDF. When you make that choice, the menu for Forms will appear). CHOOSE FORM #30.
To begin the process, a petition must be filed by the person who wishes to be named conservator. The person seeking conservatorship must properly complete all pages of the petition. The Petition must include signed and notarized acknowledgements and consents from the minor’s nearest relatives whose whereabouts are known and are as follows: parents whose rights have not been terminated; if none, adult siblings of the minor; if none, the grandparents of the minor; if none, any nearest relatives of the minor so that there are three individuals named. If there is more than one child that owns property, you must file a separate petition for each child and pay court costs for each petition. To qualify as a guardian of a minor, you must be a U.S. citizen, permanent resident, or have poof of permanent status in the U.S. You must also consent to a criminal background check.
Once the Petition has been filed and the filing fees have been paid, the Court reviews the petition. The clerk determines whether or not a notification to anyone (a “citation”) has to be issued, and then prepares the needed citation for delivery by a Sheriff’s Deputy or publication in the newspaper. In some cases, the court will appoint a Guardian Ad Litem to make sure the minor’s rights are protected and represented.
Once everything is found to be in order, and if there are no objections, the Petitioner will appear in Court and, after final review and approval of the Judge, the Order and Oath are taken, the bond amount is set, and, after a Bond is filed, the Letters of Conservatorship are signed.
As Conservator you will be required to file a Personal Status Report, Inventory, and Annual Returns.
THE RESPONSIBILITIES OF A GUARDIAN AND CONSERVATOR
Within 60 days of being appointed, a Guardian is required to file a Personal Status Report with the Court. After that, Personal Status Reports are due at least once a year for the duration of the Guardianship. A Personal Status Report informs the court where the ward is located, how the ward is doing medically and emotionally, how the ward’s needs are being met, and whether there has been any change in the condition or change in the status of the ward which might warrant the Court’s intervention or a change in the guardianship order.
Within 60 days of appointment, a Conservator is required to file an Inventory Asset Management Plan with the Court. The Inventory Asset Management Plan is an itemized inventory of the ward’s property and a Plan for managing, expending, and distributing the property of the ward. It should include a budget on how much money the ward has, how much income is coming in, and how much debt there is (house loans, cars loans, credit card debt etc.). The Court will need a budget as to what you need monthly to support the ward. If there is an increase in the cost of care for the Ward, a new Inventory Asset Management Plan may be resubmitted.
The Conservator may also be required to file Annual Returns with the Court, updating the Court on the status of the Ward’s property. Annual Reports are due within sixty (60) days of the anniversary of the date appointed and every year thereafter during the duration of the Conservatorship. . These reports require complete and accurate itemized records of all monies coming in and all expenditures on behalf of the Ward. You must save all receipts and proof of expenditures. These reports must be filed when due or you may not be entitled to commission.
The Conservator also may be required to post a Bond which bond amount will be determined by the court.