Frequently Asked Questions about Guardianship in Texas

Here is a list of some of the most frequently asked questions about guardianship in Texas:

What is a Guardianship in Texas?

In Texas, guardianship is a legal relationship established by a court of law that appoints a guardian to care for someone who is incapacitated and unable to care for themselves.

Texas law defines an “incapacitated person” as:

• A minor;
• An adult individual, such as an elderly person or developmentally disabled adult, who, because of a physical or mental condition, is substantially unable to provide for themselves, to care for their own physical health, or manage their financial affairs; or
• An individual who must have a guardian appointed to receive funds due them from any governmental source.

The person the guardian is caring for is known as a “ward”.

What are the Different Types of Guardianship in Texas?

There are four different types of guardianships available in Texas:

• Guardian of the person, full or limited: The guardian is responsible for providing care, supervision, food, clothing, medical treatment, and shelter for their ward.
• Guardian of the estate, full or limited: The guardian is responsible for managing the property and financial affairs of their ward.
• Guardian of the person and estate: The guardian is responsible for managing the care AND property of their ward.
• Temporary/emergency guardianship: A temporary guardianship is appointed until the court makes its decision.

In Texas, only one person may be appointed as guardian of the person or estate, but one person may be appointed guardian of the person and another person may be appointed guardian of the estate if it is in the best interest of the incapacitated person or ward.

How Do the Courts Decide Who Will Be Appointed Guardianship?

Texas courts assign guardianships using a top-down approach that gives preference to family members over non-family individuals.

For example, if the ward is a minor, the courts will appoint guardianship in the following order:

• Parents
• A person the last surviving parent designates for guardianship
• The nearest ascendant to the child after the parents (usually grandparents or aunts and uncles)
• A non-relative that the court determines will satisfy as an appropriate guardian

If the ward is an adult, guardianship will be assigned in the following order:

• The person designated by the ward prior to the incapacity to have guardianship
• The ward’s spouse
• A non-relative that the court determines will satisfy as an appropriate guardian

If more than one person qualifies for guardianship of a ward, then the court will decide who will be the best choice for the ward.

What Are the Responsibilities of a Guardian In Texas?

A guardian in Texas must meet all legal responsibilities established by the court. Guardians are held to high standards of behavior when it comes to the duty of care they have for their wards.

A guardian’s responsibilities can include:

• Posting a bond in an amount set by the court and taking an oath to assure that they will fulfill their duties and responsibilities. The bond is an insurance policy that protects the assets of the ward should the guardian’s actions create financial loss to the estate.
• Managing estate assets in their ward’s best interests
• Providing for their ward’s needs (clothing, food, shelter, education, medical care, etc.) to the extent allowed by the ward’s funds and resources
• Filing an annual account detailing the estate’s receipts and disbursements during the year
• Filing an inventory of the ward’s assets
• Asking the court’s permission and approval for some actions taken on behalf of the ward

Can I Designate a Guardian for Myself and/or a Guardian for My Children?

In Texas, an individual may pre-designate a guardian of the estate and a guardian of the person in the event that they become incapacitated. This is done by completing and filing a Designation of Guardian in Advance of Need document. They can also designate a guardian for their children as well. If designation is not made in advance, the court will appoint a guardian using its own methods. You also have the right to designate who you do not want your guardian to be.

What Are Some of the Alternatives to Guardianship?

There are alternatives to guardianship in Texas.

One of these is assigning the power of attorney to a trusted person. This can include creating a medical power of attorney (assigning a person to make medical and healthcare decisions if a person becomes incapacitated) and/or financial power of attorney (assigning someone to handle financial matters when a person becomes incapacitated).

Other alternatives involve creating a trust to administer an estate or a management trust to handle financial matters.

What is the Process for Appointing a Permanent Guardianship?

The applicant (a family member, friend, or other interested party, such as Child Protective Services or Adult Protective Services) submits an application for Appointment of Permanent Guardian to the court, usually in the county where the proposed ward resides.

The applicant must also provide documentation of a thorough examination, by a physician or psychologist licensed in Texas, attesting to the ward’s mental acuity and physical ability that has been performed no more than four months (24 months if the proposed ward’s incapacity results from intellectual disability) before the application for guardianship is submitted.

If the application is filed in a Statutory Probate Court, the court will appoint a court investigator who will meet with the proposed ward, attorney of record, social workers, family members, and any other persons to determine if appointing a guardianship is the best course of action.

An attorney ad litem is appointed by the court. The attorney ad litem is an attorney appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, an unborn person, or other person being considered to be placed under a guardianship.

A court hearing for guardianship is held. The proposed ward must be present at the hearing and is entitled to a jury trial if so requested. According to Texas law, there must be clear and convincing evidence that:

• The proposed ward is an incapacitated person;
• It is in the best interest of the proposed ward to appoint a guardian; and
• The rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.

The court must also find by a preponderance of the evidence that:

• The court has venue or that this court is the proper court to make the determination of necessity of guardianship;
• The person to be appointed as guardian is eligible and qualified to serve as guardian;
• The guardianship of a minor is not solely to determine or change school districts; and
• The proposed ward is totally incapacitated or is partially incapacitated, and can perform some, but not all, of the tasks necessary to care for themselves and manage the individual’s property.

The process for appointing an emergency/temporary guardian is slightly different:

• Information is received by the court that a guardianship is necessary (report from Adult Protective Services, Child Protective Services, or other party) with an application for temporary guardianship of person and/or estate
• Doctor’s letter is filed
• Attorney ad litem is appointed
• A hearing is held within 10 days of application. A temporary guardian is appointed or dismissed
• Emergency/temporary guardianship ends at 60 days
• At the end of the 60 days, the court will decide if a there is the need for a permanent guardianship or none at all
• There is a final account filed by the temporary guardian, followed by an application to close the temporary guardianship

If it is found that the proposed ward is totally unable to care of themselves, manage their property, operate a motor vehicle, make personal decisions regarding residence, and vote in a public election, the court may appoint a guardian of the proposed ward’s person or estate, or both, with full authority over the incapacitated person except as provided by law.

If the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to take care of themselves, then the court may appoint a guardian with limited powers. If it determined that the proposed ward is an adult who possesses the capacity to care for themselves as would any reasonably prudent person, then the court will dismiss the application of guardianship.

What Are Some of the Alternatives to Guardianship?

Texas law offers many alternatives to guardianship. These include (as listed in Title 3, Subtitle A, Sec. 1002.0015. of the Texas Estates Code):

• Execution of a medical power of attorney under Chapter 166, Health and Safety Code
• Appointment of an attorney in fact or agent under a durable power of attorney as provided by Subtitle P, Title 2
• Execution of a declaration for mental health treatment under Chapter 137, Civil Practice and Remedies Code
• Appointment of a representative payee to manage public benefits.
• Establishment of a joint bank account
• Creation of a management trust under Chapter 1301
• Creation of a special needs trust
• Designation of a guardian before the need arises under Subchapter E, Chapter 1104
• Establishment of alternate forms of decision making based on person-centered planning

Here to Answer Your Questions

Keith Morris & Stacy Kelly, Attorneys at Law has helped many clients seek and obtain guardianship for minors and incapacitated adults. He can assess your case and help you through every step of the guardianship process. He also has experience with taking legal action against a guardian who is taking advantage of their wards.

If you have more questions about guardianship in Texas or want to discuss your guardianship issue, contact Keith Morris & Stacy Kelly, Attorneys at Law online or call (713) 636-5339 in Houston and (817) 442-2048 in Fort Worth to schedule a free initial consultation.