Guardianship is a court tool used when a judge determines someone is mentally incapable of handling their own affairs, including managing their finances or making important medical decisions. The party in need of support is known as a ward.

Wards are usually juveniles who are unable to independently manage their finances. In addition to children, this option is commonly used with adults suffering from incapacitating injuries or illnesses. Guardianship can also help protect an older loved one from elder abuse.

Anyone can apply to be a guardian as long as they are an adult, but the courts will generally look to family members of the proposed ward for help. Family members may include parents, immediate relatives, and spouses. The court will usually take into account the ward’s preference on who their guardian is as well.

Can I Designate a Guardian for my Child?

The Texas Family Code allows you to pre-designate a potential guardian for your child in case you suddenly become incapacitated and unable to care for them. This is done by creating a document known as “Designation of Guardian in Advance of Need.” The document can appoint a specific individual to serve in that role when you are no longer able to do so. 

Note: A Designation of Guardian in Advance of Need document can also name people who you do not want to act as guardians of your children.

Establishing Guardianship in Texas

The courts establish guardianship in Texas. The process generally includes: 

• Filing the Petition – A petition for guardianship of the ward is filed in probate court.
• Investigation – A court investigator or social worker is assigned to investigate and determine whether guardianship is necessary. Note: Sometimes a medical evaluation is necessary at this stage.
• Appointment of Attorney Ad Litem – An attorney ad litem is appointed to oversee that the ward’s interests and rights are protected as the hearings continue. 
• Court Hearing/Decision – A court hearing will be held where a judge determine whether to appoint a guardian. The judge will take into consideration the findings from the investigation and testimony.

About Contested Guardianship In Texas

A guardianship can be challenged by the proposed ward who may claim they are mentally competent and do not require a guardian. Other interested parties can also contest either the need for guardianship or the selection of the guardian. Additionally a participant may argue that there are less restrictive alternatives available such as a valid power of attorney.

About Temporary or Emergency Guardianship in Texas

In urgent or emergency situations, temporary guardianship can be granted under the Texas Estates Code. The court may appoint a temporary guardian to protect the ward’s well-being or financial interests when there is an immediate risk of harm or financial loss. 

How Long Does Guardianship Last?

Most guardianships do not come with an expiration date. While they can last indefinitely, the court retains jurisdiction to terminate them in the future. A guardian will often remain in place until their death or when the estate they are overseeing is closed permanently. If the ward fully regains their capacity, the court can choose to end the guardianship immediately.

Learn More About Guardianship Today

The laws surrounding guardianship are complex, and the courts will generally prefer to leave adults with the ability to make decisions on their own. This leaves you with a high burden if you intend to seek guardianship over another person in your life.

The attorneys of Barton & Associates Attorneys at Law, PLLC, can assist you with every aspect of this process. We understand the law and can advise you of potential issues that might arise in your case. Contact us today to get started.