A guardianship is a legal relationship between a ward and an individual tasked with caring for the ward's well-being. In Texas, an "individual" is defined as a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth. In the event a pregnant woman is unable to care for her child while in gestation, another individual can petition the Texas probate court for guardianship over the child. The court will require the appointment of an attorney guardian ad litem to advocate for the unborn child's best interests throughout the duration of the proceedings.
Role of a Guardian
The role of a guardian is to uphold the best interests of the ward in all matters relating to the ward's financial and physical health. The court must balance the guardian's powers with the ward's right to independence and, in the case of an unborn child, will likely set the guardianship to expire either upon the birth of the child or once the child reaches the age of majority. A guardian of an unborn child must make certain the child receives proper prenatal care and any health concerns affecting the mother are addressed. In the event the unborn child has assets or property in place, the guardian must manage these prudently and in the child's best financial interests.
Any family member, friend or interested party can file an application for guardianship. The application is filed in the probate court in the county where the proposed ward (unborn child) resides. The application must contain information relating to the unborn child to the extent available prior to birth, including identification of the mother and father (if known), estimated date of delivery and facts giving rise to the need for a guardian. The proposed guardian must also provide details as to his relationship with the ward, requested term of the guardianship, identification of the ward's next-of-kin, and approximate value of the ward's estate among other things.
Procedures After Application
After the application is filed, the court will appoint an investigator to meet with the proposed ward and ward's family members, social worker and guardian ad litem. In the case of an unborn child, the investigator must review medical records, monitor the progression of the pregnancy and otherwise stay involved with the unborn child's gestation. The investigator must submit a report to the court, including the investigator's findings and conclusions. The guardian ad litem may also submit a report with her findings as to whether the unborn child is in need of a guardian.
The court will schedule a hearing once the investigator's report has been filed and served to all interested parties. If the guardianship is contested, the court will hear testimony from those in support of and opposed to the appointment of a guardian for the unborn child. The court must then determine whether the unborn child, through the auspices of its natural mother, is able to maintain its health and financial well-being. In order to find in favor of the proposed guardian, the court must determine beyond a preponderance of the evidence that the proposed ward is incapacitated, it is in the ward's best interest to appoint a guardian and the rights of the ward will be protected by the guardian.
Bond and Letters of Guardianship
If the court rules in favor of the proposed guardian and approves the guardianship arrangement, a bond may be required. A bond is an insurance policy designed to protect the financial assets of the proposed ward. The judge determines the amount of bond necessary, and bond is not required in all cases. Once the case is finalized and bond is approved, the probate court will issue letters of guardianship. These letters may be provided to prenatal care providers or others involved with the unborn child in order to alert each that a guardian is in place for the child.
References & Resources
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