Incapacity With No Plan in Texas: Guardianship
If an adult becomes unable to manage their affairs and has no power of attorney, trust or other plan, a family member may need to petition a Texas court for guardianship. The court decides whether the person is incapacitated, appoints a guardian, and supervises the guardian's work, often for years. It is public, slow and restrictive, which is why signing powers of attorney and a living trust ahead of time matters.
How guardianship works
- Application. An interested person files in the county court, with a physician's certificate of incapacity.
- Attorney ad litem. The court appoints an attorney to represent the proposed ward's interests.
- Hearing. The judge decides whether the person is incapacitated and who should serve.
- Guardian qualifies. The guardian takes an oath and often posts a bond.
- Ongoing supervision. The guardian files inventories and annual reports, and needs court approval for many actions, such as selling real estate.
Guardian of the person vs the estate
Texas separates the roles. A guardian of the person makes decisions about living arrangements, medical care and daily life. A guardian of the estate manages money and property. One person may serve as both, or the court may appoint different people.
What you give up
- Privacy. Guardianship proceedings and reports are in the court record.
- Control. The court, not you, chooses the guardian.
- Flexibility. Many financial decisions need court approval.
- Autonomy. Rights such as voting, marrying or deciding where to live may be restricted.
Alternatives
Texas law requires courts to consider less restrictive options before appointing a guardian. Those include a durable power of attorney, a medical power of attorney, a living trust, a supported decision-making agreement, and a management trust. These arrangements are set up while the person has capacity. See durable powers of attorney.
The planning takeaway
Guardianship is the backup if no plan exists. A plan signed in advance keeps decisions in your chosen person's hands and out of court. If a family member is already incapacitated without a plan, a probate attorney can explain whether a guardianship, a limited guardianship or an alternative fits. A parent of a child with a disability should consider these steps before the child turns 18. See special needs planning.
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Book Free ConsultationFrequently asked questions
Can a family member become my guardian without a court?
Not for most legal authority. A court must appoint a guardian, unless you signed powers of attorney or created a trust.
Can I choose my guardian in advance?
Yes. Texas allows you to name a preferred guardian in a written declaration, which the court generally honors if the person is qualified.
How long does guardianship last?
Until the ward's death or until the court ends it if capacity is restored.
Is there a less restrictive option?
Yes. A limited guardianship, a supported decision-making agreement or existing powers of attorney may be enough.