Guardianship in Texas: A Responsibility of Last Resort
Deciding to seek guardianship over a loved one is one of the most difficult choices a family can face. Because a guardianship significantly restricts an individual's legal rights, Texas probate courts view it as a last resort, only to be granted when no other means of care are feasible.
Whether you are caring for an aging parent with dementia or a minor child with special needs transitioning into adulthood, our team at Robbins Estate Law provides the compassionate, steady guidance required to navigate the Texas Estates Code. We serve families across Texas ensuring that the "ward" is protected while their dignity is preserved.
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What Is a Guardianship?
Through a guardianship, one person—the guardian—gains the legal authority to make decisions on behalf of another—the ward. Guardianships are a last resort for people who cannot get the care they need through other means. Before a guardian is appointed, a probate court must conclude it is necessary to protect the ward and promote their interests.
Types of Guardianships
Texas has two types of guardianship: guardianship of the person and the estate. You may request one, the other, or a combination of the two.
A guardian of the person controls the ward’s personal affairs, like housing, healthcare, and food. A guardian of the estate controls the ward’s financial affairs, like buying or selling property, making investments, and entering into contracts.
Additionally, guardianships may be limited or full. A limited guardianship authorizes the guardian to exercise some powers of a guardian. In contrast, a full guardianship authorizes the guardian to exercise most, if not all, of the powers of a guardian.
Guardianships vs. Conservatorships
Many states use the terms “guardianship” and “conservatorship” interchangeably. In Texas, however, conservatorships establish physical and legal custody of a minor, while guardianships usually apply to adult wards.
The Two Roles of a Guardian
Texas law splits guardianship into two distinct categories, though one person often serves in both roles:
- Guardian of the Person: Responsible for personal affairs such as housing, medical care, and food.
- Guardian of the Estate: Responsible for financial affairs, including managing investments, paying debts, and protecting property.
Defining Incapacitation To appoint a guardian for an adult, the court must find they are "incapacitated". This generally means they are substantially unable to provide for their own physical health or manage their financial affairs due to a mental or physical condition like dementia, brain injury, or severe mental illness .
Transitioning from Minor to Adult Guardianship While guardianship over minors is rare (as conservatorships are preferred), a specialized transition exists for children with special needs . You can apply for guardianship within 180 days of a minor's 18th birthday to ensure there is no gap in their legal protection once they become an adult.
Guardianship of Adults
You can only establish guardianship over an adult who is fully or partially incapacitated. The proposed guardian must submit a thorough application explaining what powers they need and why the guardianship is necessary.
Incapacitation
A person is incapacitated for guardianship purposes when they are substantially unable to:
- Provide their own food, clothing, or shelter;
- Care for their health; or
- Manage their financial affairs.
Incapacitation may result from a physical or mental condition like:
- Developmental disabilities,
- Severe mental illnesses,
- Dementia,
- Brain injuries, and
- Severe substance use disorders.
These conditions, like guardianships, may be temporary or permanent.
Application Requirements
Requesting a court appoint you as a guardian requires an extensive and detailed application. Among other details, you must explain:
- The type of guardianship (full, limited, estate, and person),
- How the proposed ward is incapacitated,
- What alternatives to guardianship have been considered and why they are infeasible, and
- Why you are requesting an appointment.
To the best of your ability, you must also provide contact information for the proposed ward’s parents, siblings, and children.
You must also provide expert medical documentation of the ward’s condition. If the incapacity results from a physical condition, the expert must be a physician. If the incapacity results from a mental condition, the expert may be a physician or a psychologist. The expert must evaluate the proposed ward’s condition and address how and in what ways the ward is incapacitated.
Guardianship of Minors
Legally, minors are incapacitated. However, guardianships over minors are rare in Texas. A conservator is typically appointed except in limited circumstances.
Death or Incapacity of Both Parents
Courts may appoint a guardian for a minor if the minor is orphaned or their parents become incapacitated. If the last surviving parent designates someone to act as guardian, the court will generally honor that appointment. If the parent does not designate a guardian, the court typically appoints “the nearest ascendant” in the minor’s “direct line.” An “ascendant” is the opposite of a descendant. So, an ascendant in a direct line is a grandparent or great-grandparent. If no direct ascendants are willing or able to serve, the court generally appoints the minor’s nearest kin. This may be an adult sibling, an aunt or uncle, or a relative of a similar degree.
The Minor Will Need a Guardian as an Adult
You may also request guardianship within 180 days of a minor’s 18th birthday if they need a guardian once they turn 18. In limited circumstances, the court may appoint the minor’s conservator as their guardian without a hearing as long as they submit a medical report. Otherwise, the proposed guardian follows the usual guardianship application requirements.
Hearings
Generally, when a proposed ward applies for guardianship, the court schedules a hearing. The proposed ward may contest the appointment. Because a guardianship restricts the ward’s legal rights, they get special protections, like the right to:
- Request a jury trial,
- Court appointment of a guardian ad litem,
- Representation by a lawyer, and
- Court appointment of an attorney ad litem.
At the hearing, the proposed guardian and the proposed ward present evidence supporting or opposing the guardianship. When the hearing ends, the judge (or jury) determines whether the guardianship is necessary.
Serving as Guardian
Before the guardian can exercise their powers, they must qualify to serve by:
- Take or file an oath or declaration to faithfully discharge their duties,
- Pay a bond,
- Obtain the judge’s approval of the bond, and
- File the bond with the court.
Once the proposed guardian qualifies, the court issues letters of guardianship to make the guardianship official. The guardian typically must file a guardianship report every year the guardianship continues, which the court reviews.
Terminating or Modifying a Guardianship
Temporary guardianships generally establish an expected end date or condition. To terminate the guardianship, you follow those terms.
Wards, guardians, and other interested people may request that the court terminate or modify a guardianship. Modification may involve restoring some of the ward’s rights, like turning a full guardianship into a limited one. It may also involve giving the guardian additional powers, like turning a guardianship of the person or estate into a guardianship for both. You may also request that the guardian be removed and replaced.
The court may terminate a no longer necessary guardianship. The court will generally hold a hearing at which the parties may present their reasons and evidence to support continuing or ending the guardianship.
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The information above only scratches the surface of guardianship law in Texas.
If you need assistance establishing, modifying, defending against, or terminating a guardianship, contact Robbins Estate Law. You can speak with an experienced minor and adult guardianship attorney and learn more about the options available in your unique circumstances.
FAQs Guardianship
What is the difference between a Guardian and a Conservator?
In Texas, conservatorships primarily handle custody of minors, whereas guardianships are typically utilized for incapacitated adults .
Can a guardianship be limited?
Yes. A court may grant a limited guardianship, allowing the ward to keep certain rights while the guardian only handles specific tasks like complex financial decisions.
What are Letters of Guardianship?
These are official documents issued by the court after the guardian takes their oath and pays a bond, serving as legal proof of their authority .