Guardianship is one of the most significant legal actions a family can take. It involves asking a court to appoint someone to make decisions for another person -- a step that removes fundamental rights from an individual. Because of this, Texas courts treat guardianship as a last resort, to be used only when less restrictive alternatives are not available.
At WG Law, we guide families through this process with care, helping them understand when guardianship is truly necessary and what it entails.
When Is Guardianship Needed?
Guardianship becomes necessary when:
- A person (called the "proposed ward") lacks the mental capacity to make decisions about their personal care, finances, or both
- No power of attorney or other legal document exists that gives someone else authority to act on their behalf
- Less restrictive alternatives (supported decision-making agreements, representative payees, trusts) are insufficient to protect the person
Common situations that lead to guardianship include:
- A parent with advanced Alzheimer's or dementia who never signed a power of attorney
- An adult child with an intellectual disability who needs help managing daily life
- A person who suffered a traumatic brain injury and can no longer manage their affairs
- An elderly person being financially exploited who cannot protect themselves
Types of Guardianship in Texas
Texas law recognizes several types of guardianship under the Texas Estates Code:
Guardian of the Person
A guardian of the person makes decisions about the ward's personal care, including:
- Where the ward lives
- Medical treatment and healthcare decisions
- Daily care, nutrition, and hygiene
- Social activities and interactions
Guardian of the Estate
A guardian of the estate manages the ward's financial affairs, including:
- Paying bills and managing bank accounts
- Managing investments and property
- Filing tax returns
- Making financial decisions in the ward's best interest
Full vs. Limited Guardianship
Texas courts prefer limited guardianship whenever possible. This means the court grants the guardian authority only over specific areas where the ward needs help, while the ward retains rights in all other areas. For example, a person might need a guardian to manage finances but retain the right to make their own medical decisions.
Full guardianship removes virtually all decision-making rights and is reserved for situations where the ward cannot manage any aspect of their life independently.
The Guardianship Process in Texas
Step 1: File an Application
A family member, friend, or other interested person files an application for guardianship with the county court. The application must include:
- Information about the proposed ward and their condition
- The type of guardianship requested
- The name of the proposed guardian
- A physician's letter or medical evidence of incapacity
Step 2: Court Appoints an Attorney Ad Litem
The court appoints an attorney to represent the proposed ward's interests. This attorney meets with the proposed ward, investigates the situation, and reports to the court. The proposed ward has the right to contest the guardianship.
Step 3: Investigation and Evaluation
The court may also appoint a guardian ad litem (a non-attorney investigator) to evaluate the proposed ward's living situation, the qualifications of the proposed guardian, and whether less restrictive alternatives exist.
Step 4: Hearing
A hearing is held where the judge considers all evidence, including medical testimony, the attorney ad litem's report, and testimony from family members. The proposed ward has the right to attend and participate.
Step 5: Court Order
If the court finds that guardianship is necessary and the proposed guardian is qualified, it issues an order specifying:
- The type of guardianship (person, estate, or both)
- Whether it is full or limited
- The specific powers granted to the guardian
- Any rights retained by the ward
Responsibilities of a Guardian
Being appointed as a guardian is a serious obligation. Texas law requires guardians to:
- Act in the ward's best interest at all times
- File an annual report with the court detailing the ward's condition and activities
- File an annual accounting of all financial transactions (for guardians of the estate)
- Obtain court approval for major decisions like selling property or moving the ward to a different facility
- Complete required training within 60 days of qualification (when the guardian files the oath and bond)
Failure to meet these obligations can result in removal as guardian and potential legal liability.
Alternatives to Guardianship
Before pursuing guardianship, families should consider whether less restrictive alternatives can meet the person's needs:
- Power of Attorney -- If the person still has capacity, a durable power of attorney can avoid the need for guardianship entirely
- Supported Decision-Making Agreement -- Texas law allows a person with a disability to enter an agreement where supporters help them make decisions without removing their legal rights
- Representative Payee -- Social Security can appoint a representative payee to manage benefits
- Trust -- Assets can be placed in a trust managed by a trustee
The Cost of Guardianship
Guardianship is not inexpensive. Typical costs include:
- Attorney fees: $3,000 to $8,000 or more for an uncontested guardianship
- Court costs and filing fees: $200 to $500
- Attorney ad litem fees: Paid from the ward's estate or by the applicant
- Ongoing costs: Annual reports, accountings, and required training
Contested guardianships -- where family members disagree about who should serve or whether guardianship is needed -- can cost significantly more.
Start with Planning, Not Guardianship
The best way to avoid guardianship is to plan ahead. A properly executed durable power of attorney and medical power of attorney, signed while a person still has capacity, eliminates the need for court-appointed guardianship in most situations.
If your family is facing a guardianship situation, or if you want to put documents in place to avoid one, contact WG Law. We'll help you find the path that best protects your loved one.