pjc-family-2024-lib

G UARDIANSHIP OF A DULT

PJC 240.1

PJC 240.1 Purpose of Guardianship (Comment) When crafting a jury charge, litigants and judges should always be mindful of the stated policy of the state of Texas to allow incapacitated individuals to retain as much of their right to self-determine as is consistent with their level of remaining capacity. Consequently, jury questions should be narrowly framed to address the core issues of capacity or lack thereof and the degree of incapacity. This policy is set out in section 1001.001 of the Texas Estates Code: (a) A court may appoint a guardian with either full or limited author ity over an incapacitated person as indicated by the incapacitated person’s actual mental or physical limitations and only as necessary to promote and protect the well-being of the incapacitated person. (b) In creating a guardianship that gives a guardian limited authority over an incapacitated person, the court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person, including by presuming that the incapacitated person retains capacity to make personal decisions regarding the person’s residence. Tex. Est. Code § 1001.001. The Code also provides as follows: In determining whether to appoint a guardian for an incapacitated person who is not a minor, the court may not use age as the sole factor. Tex. Est. Code § 1101.105. Further, in preparing the charge, careful consideration should be given to the possi bility that there may be a guardianship of the person of the ward and a separate guard ianship of the estate of the ward or that the facts may require only one of these guardianships. In addition, different persons may have applied to be guardian of the person and of the estate, and a particular person may be the best choice for one of these and not the other.

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