Guardianship & Alternatives FAQ

There are two types of guardianships. A guardian appointed to take care of the physical well-being of an incapacitated individual is called “guardian of the person,” while a guardian appointed to take care of the individual’s property is called “guardian of the estate.” In some cases, only one type of guardian is appointed for a particular person. In many cases, both a guardian of the person and a guardian of the estate is appointed.

An “incapacitated person” is an adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, care for his or her own physical health, or to manage his or her own financial affairs. Incapacitated people may include people with intellectual disabilities, mental illnesses, physical illnesses, or disabilities related to advanced age, chronic alcohol or drug use, or other conditions. A “minor” (a person younger than 18 years who has never been married or who has not had his or her disabilities of minority removed by judicial action) is also considered by law to be an incapacitated person.

Texas law provides a priority list for choosing the guardian of an incapacitated individual, beginning with the person identified by the incapacitated individual (before his or her incapacity) in a “designation of guardian” legal document, or some cases, the person identified by the last-surviving parent of the incapacitated individual in his or her designation of guardian. If no designation exists, the court looks to the incapacitated person’s spouse, if any, and then to the next of kin, followed finally by a nonrelative. The priority list for guardian of a minor begins with parents, followed by the person designated by the last-surviving parent, and then the nearest ascendant (grandparents, great-grandparents, etc.), next of kin, and finally, a nonrelative.

If more than one person of the same priority wishes to be guardian, the court chooses the person who is best qualified to serve. In considering priority, the court has the authority to skip over a person higher on the priority list if the court determines that the person is ineligible due to a conflict of interest, lack of experience, notoriously bad conduct, or other reasons of unsuitability.

Guardianship law is designed to protect the rights and well-being of individuals who lack the capacity to protect themselves. Some many steps and procedures provide this protection and assure that all parties comply with the law. These procedural safeguards necessitate a significant amount of attorney involvement and resultant legal fees. In addition to the proposed guardians’ attorney fees, applicants for guardianship usually pay the attorney fees for court-appointed attorney ad litems (and sometimes guardian ad litems), as well as court filing fees, service of process fees, legal notice costs, and bond premiums.

In many cases, there are available alternatives to guardianship, such as supported decision-making agreements, medical powers of attorney, statutory durable powers of attorney, joint bank accounts, special needs trusts, etc. However, several of these alternatives are only available to individuals with the capacity to understand and legally execute the legal documents. In ALL cases, alternatives to guardianship must be considered, along with support and services, to ensure that the guardianship is the least-restrictive alternative for the incapacitated individual.