What is a Guardianship in Texas?

In Texas, a 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.

Who is an incapacitated person?

In Texas, the 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 to them from any governmental source.

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

What are the types of guardianships in Texas?

There are four different types of guardianships in Texas:

1. Guardian of the person – is responsible for providing care, supervision, food, clothing, medical treatment, and shelter for the ward
2. Guardian of the estate – is responsible for managing the property and financial affairs of the war
3. Guardian of the person and estate – is responsible for managing the care and property of the ward
4. Temporary/emergency guardianship – can last for 60 days until the court decides about a more permanent guardian.

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.

A guardian’s responsibilities can include:

• Providing for their ward’s needs (clothing, food, shelter, education, medical care, etc.) to the extent allowed by the ward’s funds and resources
• 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
• 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

Who can be a guardian?

Not just anyone can be a guardian. A guardian is an important responsibility. The court typically gives preference to family members over non-family members.

If the ward is a minor, the courts will appoint a guardian in the following order:

• Parents
• A person the last surviving parent designates for guardianship
• The nearest ascendant to the child after the parents
• 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
• The ward’s spouse
• A non-relative that the court determines will satisfy as an appropriate guardian

Who cannot be a guardian

Who can be disqualified as a guardian:

• Someone with certain criminal convictions
• Someone who is owed money to or is otherwise being indebted to the proposed ward

The Process to Appoint a Permanent Guardian

The applicant files an application for Appointment of Permanent Guardian to the court, usually in the county where the proposed ward resides. In Travis County, all applications are filed with the Probate Court.

The applicant must also provide an examination report by a physician or psychologist licensed in Texas, attesting to the ward’s mental and physical ability. The examination must not have been performed more than four months before the application for guardianship is filed.

The court will then appoint an attorney ad litem who will meet with the proposed ward, attorney of record, family members, and any other persons necessary to determine if appointing a guardian is the best course of action. The ad litem advocates on behalf of the proposed ward.

A proposed guardian must seek certification by the Texas Office of Court Administration Judicial Branch Certification Commission (JBCC) prior to being appointed and prior to the hearing.

You then appear in court. Typically, the proposed ward must be present at the hearing.

At the hearing, the court must 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 court must also find by 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.

If the court finds that the proposed ward is totally unable to care for themselves, manage their property, drive a motor vehicle, vote in a public election, among other things, the court may appoint a guardian of the proposed ward’s person or estate, or both, with full authority over the incapacitated person.

If the propose ward does not lack the capacity to do all the necessary tasks to take care of themselves, the court may appoint a guardian with limited powers.

If the court determines 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 for guardianship.

For further information, please contact us.