Guardianship in Texas: FAQ

Taking on the guardianship of a minor child or of an incapacitated adult in the State of Texas is an immense responsibility that affords you the honor and the privilege of caring for your loved one – and the legal rights you need to make primary decisions on their behalf.

If you have questions or concerns about guardianship, the answers to these frequently asked questions may help, and if you are ready to learn more or to begin the legal process of guardianship, it’s time to consult with an experienced Round Rock family law attorney.

What does it mean to be someone’s legal guardian?

In the State of Texas, guardianship refers to a legal relationship that is established by the court when an adult is assigned to care for someone, like a minor, who is unable to care for themself – or for an adult who is incapacitated. In the State of Texas, an incapacitated person refers to all the following:

A minor
An adult who is substantially unable to provide for themself, care for their own physical health, or manage their own financial affairs due to a physical or mental condition, such as an elderly person or a developmentally disabled adult
An adult who needs a guardian to receive funds owed to them by a governmental source

The person in need of care is known as the guardian's ward.

How does guardianship differ from adoption?

When an adult adopts a child, they become their legal parent, and they are awarded all the legal rights that every other parent has, which include the right to make all primary decisions on behalf of the child, such as:

Where they make their primary home
Where they attend school
The medical care they receive
The religious education they receive
The extracurricular activities and travel they participate in

This decision-making right extends to making the everyday decisions that parents are called upon to make and to making any emergency decisions that arise.

Adoption is a strict legal process that follows its own exacting course.

However, when an adult becomes a child’s guardian, the process is distinct, and the guardian’s rights are much more limited. In Texas, when an adult who is not a child’s biological or adopted parent becomes their guardian, it requires a suit affecting parent-child relationship (SAPCR), which is used to address guardianship and custody concerns.

Guardians are tasked with making specific decisions on behalf of their wards, and the kinds of decisions involved are set forth by the court and can vary from case to case. Another primary distinction is that the laws of inheritance in Texas do not flow from guardian to ward the way they do from adoptive parent or biological parent to child.

What are the different kinds of guardianship in Texas?

There are four distinct types of guardianship in Texas, including:

Guardian of the Person, which can be full or limited – In this case, the guardian is responsible for providing their ward with care, supervision, medical care and treatment, shelter, food, and clothing – much like parents do for their children.
Guardian of the Estate, which can be full or limited – In this case, the guardian is responsible for managing their ward’s property and financial affairs.
Guardian of the Person and Estate – In this case, the guardian is responsible for managing their ward’s overall care as well as their property.
Temporary or Emergency Guardianship – In this case, an adult is assigned the role of temporary guardianship of their ward, which lasts until the court rules on the matter.

In Texas, a ward can have only one guardian for their person or estate, but one person can be assigned guardianship of their ward’s care while another is assigned guardianship of their ward’s property when the court deems it in the ward’s best interests.

How do Texas courts determine who will become a child’s guardian?

Texas courts take a top-down approach when it comes to assigning guardianship, and this means that family members are given preference over non-family members. For a minor, this approach takes the following contenders for guardianship into consideration in the following order:

The child’s parent, such as a parent who may not have been in the child’s life prior to the death of their other parent
Someone whom the child’s last surviving parent designated for guardianship in their will
The closest relative to the child after their parents, which usually means a grandparent or an aunt or uncle
A non-relative whom the court deems suitable for this important responsibility

When the ward in question is an adult, however, Texas approaches candidates for guardianship in the following order:

The person whom the incapacitated person designated to be their guardian prior to becoming incapacitated
The incapacitated ward’s spouse
A non-relative whom the court deems suitable for this important responsibility

When there is more than one qualifying candidate for guardianship of a ward, the court makes the choice based on its own discretion.

What responsibilities does a guardian take on?

To be a guardian in Texas, the adult must meet all the legal responsibilities set forth by the court. Because they owe their wards a high duty of care, guardians are held to high standards. Their responsibilities can include all the following:

Posting a bond amount required by the court and taking an oath to faithfully fulfill the duties and responsibilities required of them in relation to their ward. The bond works as an insurance policy in protection of the ward’s assets should the guardian cause their estate financial loss.
Managing their ward’s estate assets in accordance with the ward’s best interests.
Providing for their ward’s needs the way a parent would, including providing shelter, food, clothing, medical care, education, and beyond –to the extent that the guardian’s financial resources allow
Asking for the court’s permission and approval in relation to actions that are outside their court-ordered responsibilities
Filing an inventory of their ward’s assets
Filing an annual account that details the receipts and disbursements that flow through their ward’s estate

How do I become a child’s permanent Guardian?

To become a child’s permanent guardian, you will need to submit an application for appointment of permanent guardian to the court, which typically means the court in the county where the child resides.

You will also need to provide proof that your ward underwent a necessary examination – by either a physician or a psychologist who is licensed in the State of Texas – that was performed in the four months prior and that attests to their mental and physical health.

If your proposed ward is incapacitated by intellectual disability, the examination must have been performed within the 24 months prior. If your filing continues to move forward, the court will appoint an investigator to meet with all the following interested parties to help ensure that you becoming the ward’s guardian is in their own best interest:

The ward themself
The attorney of record for the case
Any involved social workers
Family members of the ward
Any additional relevant parties

From here, the court will appoint a guardian ad litem to serve as a legal advocate and representative for the child. An attorney generally serves as a guardian ad litem. Finally, a court hearing for guardianship will be held. The ward must be present for the hearing, and they are entitled to a jury trial if they request one.

For the guardianship to go through, all the following must apply:

Your proposed ward is an incapacitated person, and minors qualify under this legal category.
Appointing you as your proposed ward’s guardian is in their best interest.
Appointing you as your proposed ward’s guardian helps to protect their rights and property.

Additionally, the court must determine – through the preponderance of the evidence, which basically means that it is more likely than not – that all of the following apply to your case:

That the court itself has jurisdiction over the matter
That you are eligible and qualified to serve as your proposed ward’s guardian.
That the guardianship is not solely to determine or to change your proposed ward’s school district.
The proposed ward requires help caring for themself and managing their own estate, which children do.

What happens when an emergency guardian is appointed?

When an emergency guardian is required, Texas courts take the following steps:

The court receives word that a guardian is required, such as from Child Protective Services, in the form of an application for temporary guardianship.
A doctor’s letter is filed.
A guardian ad litem is appointed to the ward.
A hearing is held within 10 days of application, and a proposed temporary guardian is either appointed or dismissed.
The emergency or temporary guardianship ends after 60 days.
Once these 60 days have elapsed, the court determines if there is a need to pursue permanent guardianship.
The temporary guardian who was assigned files a final accounting, which is follow by an application to close the temporary guardianship.

When is an adult most likely to require a guardian?

Every guardianship case is as unique as the individuals involved, but some of the most common reasons an adult may require a guardian include all the following:

Sometimes, a minor who has a permanent disability due to a birth injury or serious illness requires a guardian once they become an adult.
Sometimes, an adult who suffers a serious injury, such as a traumatic brain injury, is left incapacitated and requires a guardian as a result.
Sometimes, an adult requires more help taking care of themself with the passage of time, and as a result, they come to require a guardian.

In these cases, guardianship allows the ward to continue living their life as fully as possible – while their best interests are well accounted for by the guardian.

Are There Better Options for Adults?

Appointing someone as an adult’s legal guardian is a serious legal matter that is best reserved for instances when other options will not suffice. Depending on the circumstances involved, these are several other options that may be appropriate, including:

Power of Attorney – A power of attorney (POA) is set up as an advance care directive, and it allows the POA – who is not necessarily an attorney – to make important decisions and to act on behalf of the adult who requires assistance. This position, however, must be appointed prior to the individual’s incapacitation.
Public Benefits – Public benefits, such as Medicaid, food stamps, and TANF can be received by an authorized representative of the adult recipient, and no guardian is required.
Social Security – The Social Security Administration (SSA) allows a recipient’s benefits to pass through a payee who is their representative – regardless of whether or not the recipient has a guardian.
In an Emergency – In an emergency situation, such as when someone is hospitalized and can’t communicate their wishes regarding their own medical treatment, a close family member can step in to do so on their behalf.

Discuss Your Guardianship Case with an Experienced Round Rock Family Law Attorney Today

If you are interested in learning more or are a pursuing guardianship, Brett Pritchard at The Law Office of Brett H. Pritchard is a compassionate Round Rock family law attorney with a wealth of experience skillfully guiding guardianship cases effectively and efficiently forward.

Our trusted legal team is on your side and here to help, so please don’t put off reaching out and contacting or calling us at 254-781-4222 and scheduling a free consultation to learn more about what we can do for you today.