What is Guardianship?

Guardianship is a legal process designed to protect vulnerable persons from abuse, neglect (including self-neglect), and exploitation. Guardianship provides for the person’s care and management of his or her money while preserving, to the largest extent possible, that person’s independence and right to make decisions affecting his or her life.

Guardianships are created for a variety of different reasons. People become incapacitated due to disease, injury, or developmental disability. No matter what the cause, the decision to seek guardianship is often painful and difficult for the alleged incapacitated person and his or her family members.

Guardianship removes certain rights and privileges from an incapacitated person, referred to as the “ward”. An incapacitated person can be a minor (under 18 years old) or an adult. The guardianship statute defines an incapacitated adult as a person who, because of physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself; care for the individual’s own physical health; or manage the individual’s own financial affairs.

Parents can request a guardianship over a minor. Interested persons can request a guardianship over an incapacitated adult. Hospitals, nursing homes, law enforcement, neighbors, churches, and interested persons can all make reports to Adult Protective Services (APS) or to a probate court if they believe a person is incapacitated.

Please note that a person is not legally incapacitated until a court has declared that the person is incapacitated. Before the court makes a determination, a person for whom a guardianship application has been filed is called the “alleged incapacitated person” or the “proposed ward”. The court may not use age as a factor in determining whether to appoint a guardian for an adult. The court appoints another person (guardian) to make some or all of these necessary decisions. Whether the court appoints a guardian with broad or limited authority depends upon the physical or mental limitations of the incapacitated person.

Establishing a guardianship may remove considerable rights from an individual, and it should only be considered after alternatives to guardianship have proven ineffective or are unavailable. The Court will consider alternatives including supports and services to ensure that a person has a way to obtain food, clothing, shelter, medical care, or personally care for or manage financial affairs for him/herself.

In cases where a lesser restrictive alternative to guardianship is ordered, these alternatives include, but are not limited to:

• Appointing an agent under a medical power of attorney
• Assigning an attorney or agent under a durable power of attorney
• Establishing a declaration for mental health treatment
• Appointing a representative payee
• Establishing joint bank accounts
• Creating a management trust
• Creating a special or supplemental needs trust
• Designating a guardian before one is needed
• Making decisions based on person-centered planning

These alternatives can also include Supports and Services and refer to formal and informal resources and assistance enabling an individual to meet their basic needs, care for their physical or mental health, manage their financial affairs, and make personal decisions regarding residence, voting, operating a motor vehicle, and marriage. These can include, but are not limited to:

• Supportive Decision-Making Agreements
• Formal and informal resources such as: food banks, transportation assistance programs, legal aid assistance, medical and clinic healthcare, local mental health care, utility assistance, and other programs.
• Case/Care management
• Informal support from family, friends, church, community services, etc.

Capacity describes someone’s ability to think about, make, and carry out a decision. In Texas, a physician, licensed psychologist, or a physician-supervised nurse practitioner may assess capacity. This is done by observing and asking questions and doing cognitive and mood testing. Depending on one’s answers, abilities, and medical conditions, an individual may be found to have full, partial, or no capacity to make and carry out decisions for themselves, either permanently or temporarily.

According to the Texas Estates Code § 1002.017, an “incapacitated person” is an adult who is substantially unable to provide for their own food, clothing, shelter, physical health, or financial affairs due to a physical or mental condition. In more straightforward terms, capacity has to do with someone’s ability to make and carry out normal daily decisions that are consistent with their beliefs and values, and that consider the risks, benefits, and alternatives to a decision. As long as someone can cognitively make a decision, it’s okay if someone else physically carries out the choice. Diminished ability to make and carry out decisions, so called decisional incapacity and executive incapacity respectively, can occur as a result of many medical and mental health conditions including: dementias like Alzheimer’s, severe psychiatric illnesses, traumatic brain injuries, strokes, intellectual and developmental disabilities, a short-term confusional state called delirium, short- and long-term effects of illicit substance use, severe medication adverse effects, and much more. Sometimes the effects of these and other conditions may be permanent, progressive, or irreversible, and a more enduring solution like guardianship may be needed.

Other times the underlying cause can be treated and resolved, and an individual can return to their baseline function and decision-making. Whatever the cause, and whatever the duration, when someone has diminished capacity, they greatly benefit from help and support to avoid personal harm. In this situation, licensed physicians, psychologists, and nurse practitioners with physician supervision may be asked to perform a capacity assessment to best determine how much support an individual may need and for how long. Practitioners should perform detailed and comprehensive interviews about self-care and daily function, utilize cognitive and mental health screening tools, review available medical, school, and other records, and talk to collateral sources of information about the individual (including other healthcare and social services professionals, and the individual’s close associates like family and friends). If done well, capacity assessment and associated review of collateral information likely will take several hours even when done by a highly knowledgeable and trained medical professional. Depending on the findings of the capacity assessment, the healthcare professional may recommend a range of help including community supports and services, full-time caregivers, powers of attorney, legally authorized supported decision-makers, and sometimes a guardian of the person and/or estate. Such a determination of incapacity should always be made with the utmost professionalism and care of the individual, as the determination of incapacity and the recommendation for the legal removal of the rights of an adult is a highly restrictive step not to be taken lightly.

There are different types of guardianships:

• A Guardian of the Person is appointed by the Court to take care of the physical well-being of an incapacitated person.
• A Guardian of the Estate is appointed by the Court to care for an incapacitated person’s property.
• Often both a Guardian of the Person and a Guardian of the Estate are appointed, and this can be the same person.
• Guardianships either can be temporary or permanent and full or limited.
• Temporary guardianships are short-term arrangements spanning a specified period of time. Once that time is up, they can either be terminated or extended.
• Temporary guardianships of the person are typically sought when immediate intervention is needed in order to protect the individual.
• Permanent guardianships, in contrast, are intended to remain in place until the person’s rights are restored or an alternative to guardianship is put in place.
• A full guardianship allows the guardian to make all decision including choosing residence, ability to marry and other personal decisions.
• A limited guardianship reserves some rights to the person.

Application

A family member, friend or interested party (the “applicant”) files an Application for Appointment of Permanent Guardian. The application is usually filed in the county where the proposed ward resides. Along with the application, the applicant must provide documentation of a thorough examination performed within the past four months by a physician, psychologist, or a physician-supervised nurse practitioner licensed in Texas. If the proposed ward’s alleged incapacity results from a developmental disability, a psychologist certified by the Texas Department of Mental Health and Mental Retardation may provide the medical evidence if the examination was performed within six months before the hearing date. In certain cases, the physician or psychologist may be asked to testify as to the nature and degree of the proposed ward’s incapacity.

The application usually contains the following information:

• the name, sex, date of birth, and address of the proposed ward
• the name, relationship and address of the person the applicant desires to have appointed as guardian, and
• the social security number of the proposed ward and of the person the applicant desires to have appointed as guardian if required by that court
• whether guardianship of the person or estate, or both, is sought
• the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitations of rights requested to be included in the court’s order of appointment
• the facts requiring that a guardian be appointed and the interest of the applicant in the appointment
• the nature and description of any kind of guardianship existing for the proposed ward in Texas or in any other state
• the name and address of any person or institution having the care and custody of the proposed ward
• the approximate value and description of the proposed ward’s estate, including any compensation, pension, insurance or allowance to which the proposed ward may be entitled
• the requested term (one year or continuing) of the guardianship, if known
• the name and address of any person holding a power of attorney, if known, and a description of the type of power of attorney
• if the proposed ward is a minor:
  1. whether the minor was the subject of a legal conservatorship proceeding within the preceding two-year period, and if so, where and what was the disposition; and
  2. the names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased
• if the proposed ward is 60 years of age or older, the names and addresses, to the best of applicant’s knowledge, of the proposed ward’s spouse, siblings, and children; or if there is no spouse, sibling or child, the names and addresses of the proposed ward’s next of kin
• facts showing that the court has venue over proceeding; and
• if applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of the Texas Estates Code.

The court clerk will issue a citation to be served in person on the proposed ward. If the application is filed in a Statutory Probate Court, the court will appoint a court investigator. The investigator meets with the proposed ward, attorney of record, social workers, family members and any other persons necessary to determine if guardianship is the least restrictive manner in which to handle the case.

The court investigator files a report with the court. This report is made available to the attorney of record. If the application is not withdrawn based on the court investigator’s review and recommendation, attorney ad litem is appointed to advocate for the alleged incapacitated individual.

The attorney ad litem reviews the report furnished by the court investigator, conducts further investigation, if necessary and meets with the proposed ward. A time and date for a court hearing is set and notice is issued to all interested persons, including the alleged incapacitated individual.

The proposed ward must be at the hearing unless the court determines that a personal appearance is not in the proposed ward’s best interest. The court may close the hearing if the proposed ward or the proposed ward’s counsel requests a closed hearing.

Any person who does not have an adverse interest may contest the guardianship. This includes the alleged incapacitated person. At the hearing, the court inquires into the ability of the alleged incapacitated adult to feed, clothe and shelter himself or herself, to care for his or her own physical health and to manage his or her own property and financial affairs.

Because establishing guardianship is a legal process that can involve the restrictions on the person’s rights, considerable due process protections often exist at the time the guardianship is established. Protections include:

• Notice to the individual of all court proceedings
• Representation of the individual by counsel
• Attendance of the individual at all hearings/court proceedings (when appropriate)
• Ability of the individual to compel, confront, and cross examine all witnesses
• Allowance of the individual to present evidence
• Appeal of the court’s determination
• Presentation of a clear and convincing standard of proof
• The right to a jury trial

Persons Qualified to Act as Guardian

The Estates Code dictates and prioritizes persons who are eligible to become guardians. The ward’s spouse is entitled to be the guardian before any other individual. If there is no spouse or if the spouse declines or is unable to serve, then the next of kin is the next eligible individual to serve as guardian. If more than one person is entitled to serve in the same degree of kinship, the court appoints the best qualified person. If there is no family member willing or able to serve, the court may appoint any disinterested person, bank, financial institution, or guardianship program. The Texas Health and Human Services Commission or other agencies may be appointed as guardian for an incapacitated person who does not have a family member or friend who can serve in this capacity.

When determining who to appoint as guardian, the court will consider the incapacitated person’s best interest. The court will give consideration to the incapacitated person’s preference and may appoint this person if he or she is not disqualified. It is important to note at this point, Texas residents may designate a guardian prior to incapacity by completing a brief statutory form.

Persons disqualified to serve are:

• a minor
• a person whose conduct is notoriously bad
• an incapacitated person
• a person who is a party, or whose parent is a party, to a lawsuit concerning or affecting the welfare of the proposed ward
• a person indebted to the ward, unless the debt has been paid
• a person asserting a claim adverse to the proposed was or the ward’s property
• a person who, by lack of education or experience, is incapable of prudently managing the ward’s estate, or
• a person, corporation, or institution found unsuitable by the court.

It is also presumed not to be in the best interest of a ward to appoint a person as guardian if they have been convicted of:

• any sexual offense
• sexual assault
• aggravated assault
• aggravated sexual assault
• injury to a child
• abandoning or endangering a child, or
• incest.

Duties of the Attorney Ad Litem

An Attorney ad Litem (AAL) is appointed by the court to represent and advocate on behalf of a proposed ward or an incapacitated person in a guardianship proceeding. Before the hearing, the AAL interviews the proposed ward and reviews the application, medical certificates, and other pertinent information available concerning the capacity of the proposed ward. The AAL discusses with the proposed ward, if possible, the law and facts of the case, the proposed ward’s legal options regarding disposition of the case, and the grounds on which the guardianship is sought. If appropriate, the AAL files a contest to the guardianship. The AAL assures that the proposed ward has been served with proper notice, interviews the family and doctors and guarantees that no conflict of interest exists between the proposed guardian and ward. The AAL represents the proposed incapacitated individual until the guardianship is granted, denied or the attorney is discharged by court order.

Certification by the State Bar of Texas is required in order to serve as an AAL. Certification is based on successful completion of a course of study.

Duties of the Guardian Ad Litem

The guardian ad litem (GAL) is an officer of the court but is not necessarily an attorney. His or her duty is not to offer legal advice but to advocate for the best interest of the incapacitated person in a manner that will enable the court to determine what action will be the least restrictive for the proposed ward.

A GAL is not always appointed in guardianship proceedings and is only utilized when the court has reason to believe their services would be beneficial in determining the best interest of the proposed ward.

Expenses of Guardianship

Expenses associated with creating a guardianship include:

• filing and service of process fees charged by the County Clerk
• fees charged by the applicant’s attorney
• the attorney ad litem’s fees
• medical examination costs, and
• bond premiums.

These expenses may be paid out of the ward’s estate if the judge creates a guardianship.
In cases of a contested guardianship where no guardianship is created because the court finds the proposed ward has full capacity, the applicant may not be reimbursed by the proposed ward’s estate for funds spent on costs and attorney’s fees.
In cases where the proposed ward is indigent, some or most of the court expenses may be paid out of the funds of the county in which the alleged incapacitated person resides. The filing fees may vary from county to county, but in almost every case there will be charges associated with creating a guardianship.

Court Initiated Guardianship

The guardianship process may also be initiated when the court is notified by an individual or agency that a resident of the county over which the court has jurisdiction appears to be incapacitated and is experiencing abuse, neglect (including self-neglect), or exploitation and is in need of a guardian to remedy the situation. If the court finds probable cause that the person is an incapacitated person and does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate the situation.

The court investigator or guardian ad litem reviews the complaint and determines if a guardianship is the least restrictive alternative to protect the interests of the alleged incapacitated person. If guardianship appears appropriate, the court investigator or guardian ad litem files their report and causes an application for guardianship to be filed. Upon the filing of the application, attorney ad litem (AAL) is appointed by the court to advocate for the desires of the alleged incapacitated individual.

Temporary Guardianship

Temporary guardianship gives the guardian the power to act for thirty to sixty days, or less if the court determines that the guardian can complete his or her duties in less time. This action is reserved for critical situations when there is imminent danger to the person or property of the individual in need of the temporary guardianship (the “respondent”). The court may appoint a temporary guardian when it is presented with substantial evidence that a person may be incapacitated and the court has probable cause to believe that the person or that person’s estate requires the immediate appointment of a guardian.

The temporary guardian’s powers are limited to those requested of and granted by the court. A person for whom a temporary guardian is appointed is not presumed to be incapacitated and retains all rights and powers that are not specifically granted to the temporary guardian. If a permanent guardianship is not in place at the time the temporary guardianship expires, then the respondent regains all rights taken away with the temporary guardianship.

The Guardian of the Person is obligated to care for the ward’s physical, emotional, and educational needs. Under Texas law, a Guardian of the Person with full authority has the right to have possession of the ward and establish the ward’s residence. The guardian also accepts the duty to provide care, supervision, and protection for the ward as well as to provide them with food, clothing, medical care, and shelter. What is more, the guardian holds the power to consent to medical, psychiatric, and surgical treatment other than the inpatient psychiatric commitment of the ward. The guardian may establish a trust and direct that the income of the ward be placed in the trust for the purpose of obtaining eligibility for medical assistance.
In addition, the guardian has the authority to personally transport the ward or to direct the ward’s transport by emergency medical services to an inpatient mental health facility for a preliminary exam. The guardian must provide written notice immediately to the court of the filing of an Application for an Order of Protective Custody. If a guardian must place a ward in a more restrictive care facility, they again must provide notice of the placement to the court beforehand.

Finally, the guardian must inform those relatives who have elected in writing to receive notice when the ward: 1) dies; 2) is admitted to a care facility for three (3) days or more; 3) has a change of residence; 4) is staying somewhere other than the ward’s residence for a week or more.

Letters of Guardianship

Letters of Guardianship are good for one year and four months after the date of issuance and demonstrate authority to act as guardian. The residential placement facility, school, day program, and the ward’s doctors should have a copy of the Letters of Guardianship for their records. Letters of Guardianship must be renewed and reissued each year after the Annual Report is approved.

Annual Reports

Texas law requires the Guardian of the Person to file a sworn or affirmed report each year that covers a twelve (12) month reporting period, with the reporting period beginning on the qualification date. Copies are not accepted. This form must be completed with original signatures and notary seals. The guardian must contact the court if the guardian or the ward moves to a new address. Failure to file the Annual Report will result in a Show Cause Order being issued, requiring the guardian to appear in court and explain why the guardian should not be removed. The guardian may file or mail the Annual Report with the required filing fee. Be aware that the filing fees must be paid by either a money order or cashier’s check. In the event that the Guardian of the Person is unable to pay the required filing fee, the court may waive this fee. However, if the Annual Report is not filed on time and an Order to Show Cause has been issued, filing fees will not be waived.

A Guardian of an Estate is appointed by the court to handle the ward’s estate or everything the ward owns or has a right to receive, including but not limited to: personal property, real property, money, bank accounts, furniture, cars, clothes, and legal claims resulting from personal injury or other wrongdoing. Under Texas law, the Guardian of the Estate with full authority has the rights, restrictions, and duties set out below:

• Take Possession of Estate Assets: The guardian must take possession of and protect all of the ward’s property, manage all property, collect all debts, rentals, or claims that favor the ward, enforce all obligations that favor the ward, and bring and defend suits by or against the ward. The guardian must also publish a notice in a newspaper printed in the county where the Letters of Guardianship were issued calling on any person who has a claim against the estate to present the claim within the permitted period. In addition, the guardian is entitled access to the ward’s digital assets.
• Exercise Good Judgment, Good Faith, and Diligence: Guardians serve as fiduciaries and must take care of the ward’s estate even more carefully than he would his own. A Guardian of an Estate must be conservative, thrifty, and cautious when handling the assets of the ward. They should always act in good faith and be mindful of the interests of others who may have a stake in or claim to the assets under management.
• Avoid Co-Mingling of Assets: Guardians must separate the ward’s property from their own property. All funds in a guardianship estate must be placed in separate, insured accounts in the name of the guardianship estate.
• Work With the Courts: If the court ordered an allowance, no further court approval is necessary before spending funds for purposes that were approved by court order. Never spend any guardianship funds beyond the allowance without first obtaining, through an attorney, a written order of the court authorizing such expenditures. If a Guardian of the Estate makes expenditures for purposes not approved by the court, they may be subject to removal and held personally liable for any deficiencies. It is also the responsibility of the guardian that all required notices and documents are filed timely with the court.
• Insurance and Cash Deposits: Insurance must be obtained and maintained to cover all property of the ward whenever the estate has the ability to pay the premiums. All cash deposits must be within the limits of FDIC/NCUA coverage.
• Non-Cash Assets: With respect to non-cash assets, such as real property or personal effects, the guardian has a duty to protect, preserve, and insure all non-cash assets of the estate. The attorney, on the guardian’s behalf, must obtain a written order of the court before attempting to sell, transfer, lease for more than a year, abandon, or otherwise dispose of any non-cash assets of the estate. All personal property of the ward in the State of Texas should remain in Texas unless prior court approval is obtained.
• Annual Account: The Annual Account is filed each year within sixty (60) days after the anniversary of the qualification date. The Annual Account must be prepared by your attorney on your behalf. This form is accompanied by an affidavit which attests to the accuracy of the information provided and is signed by you. You should keep and organize all receipts of disbursements made on behalf of the ward out of the estate. In addition, all bank and financial statements during the accounting period should be given to your attorney for the preparation of the Annual Account. A bank officer must sign a verification of funds prepared by either your attorney or by the bank verifying funds at the end of the accounting period. You must also provide a voucher for each item of credit that is claimed in the account. Proof of the existence and possession of securities or other assets held in a financial institution is also necessary. After the Annual Account is approved by the court, you may order updated Letters of Guardianship for the Estate. Failure to file an Annual Account could result in removal.

WARD’S BILL OF RIGHTS

Texas law provides a bill of rights to you as a person under a guardianship. Your guardian will explain these rights to you, which are listed below.

A person under guardianship retains all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where specifically limited by a court-ordered guardianship or where otherwise lawfully restricted.
Unless limited by a court or otherwise restricted by law, you have the following rights:

(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, including home-based or other community-based settings, as required by Title II of the Americans with Disabilities Act (42 U.S.C. Section 12131 et seq.);

(5) to consideration of the ward’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 this state and 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 service 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 a certificate required by the Estates Code, to represent the ward’s interest for capacity restoration, modification of the guardianship, the appointment of a different guardian, or for other appropriate relief under this subchapter, including a transition to a supported decision-making agreement, except as limited by Estates Code Section 1054.006; (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 developmental 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 procedure 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 appointment and on annual renewal of the guardianship, explain the rights delineated in this subsection in the ward’s native language, or preferred mode of communication, and in a manner accessible to the ward.

A ward or one interested in the ward’s welfare may file an application with the court for orders including an order finding that the ward is no longer an incapacitated person resulting in the settlement and closing of the guardianship. In cases where the ward has the capacity, or sufficient capacity with supports and services, to do the tasks necessary to fulfill their needs, care for their physical and mental health, or manage their financial affairs, a court may limit the guardian’s powers and duties, thus permitting the ward to care for him or herself, make decisions regarding residence, or manage the ward’s financial affairs consistent with their ability, with or without supports and services.

A person may not reapply for complete restoration of a ward’s capacity or modification of a ward’s guardianship before the first anniversary of the hearing date on the last application, unless otherwise provided by the court in the order granting guardianship. A guardian cannot prevent a ward from communicating with the court or they risk being removed as guardian. At a hearing on an application for restoration or modification of a guardianship, the court will consider evidence regarding the ward’s mental or physical capacity that is relevant to the complete restoration of the ward’s capacity or modification of the ward’s guardianship at the time of the hearing. In this case, the party who filed the application has the burden of proof at the hearing. Also, the court may not grant an order completely restoring a ward’s capacity or modifying a ward’s guardianship unless the applicant presents the court with a written letter or certificate from a licensed doctor. Evidence that supports and services available to the ward increases the self-sufficiency of the ward may cause a court to limit the specific powers or duties of a Guardian. The court may also determine that the ward lacks the capacity, or sufficient capacity with supports and services, to do the tasks necessary to fulfill their needs, care for their physical and mental health, or manage their financial affairs, thus granting additional powers and duties to the guardian.

The court may remove a Guardian who does any of the following:

• Neglects to qualify by filing a Bond and Oath within twenty (20) days of the guardian’s appointment;
• Leaves the state for three months at one time without permission of the court, or removes the ward from the state;
• Cannot be served with notices or other processes because the guardian’s whereabouts are unknown, or because the guardian is eluding service;
• Has misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state, all or part of the property committed to the guardian’s care;
• Has treated the ward cruelly, or has neglected to educate or maintain the ward as liberally as the means of the ward and condition of the ward’s estate permit;
• Fails to return any account or report that is required by law to be made;
• Fails to obey any proper order of the court with respect to the performance of the guardian’s duties;
• Is proved to have been guilty of gross misconduct or mismanagement in performance of duties;
• Becomes incapacitated, sentenced to the penitentiary, or otherwise becomes incapable of performing the duties of a guardian; or
• Interferes with the ward’s progress or participation in programs