Establishing Guardianship

Guardianship Overview

The court is obligated to appoint guardians according to the statutorily mandated hierarchy located in Texas Estates Code 1104.051-1104.054, 1104.101-1104.103, and 1202.002 (formerly Texas Probate Code §676 and §677), but there are exceptions to this rule. To be qualified to serve as an Attorney Ad Litem in a Guardianship Proceeding, an attorney must have received certification from the State Bar pursuant to Section 1054 of the Texas Estates Code. Certification must be renewed every two years. If you have been certified for each of the four years immediately succeeding recertification, your recertification will be good for four more years. For information on MCLE courses that have a guardianship Attorney Ad Litem certification component, please contact the State Bar of Texas at 1-800-204-2222

Types of Guardianship:

  • A guardian of the person makes decisions regarding the life and person of the ward.
  • A guardian of the estate makes decisions regarding the financial affairs of the ward.
  • Plenary guardianship is a full guardianship of the person in which the ward retains no rights whatsoever.
  • Partial guardianship is a limited guardianship in which the ward retains some rights, such as the right to vote.

Establishing a Guardianship

To establish a guardianship, you must retain an attorney, preferably one with experience in the field. Unless the proposed ward is a minor, a certificate from a doctor who has examined the proposed ward must be filed with the court. There are specific requirements for the certificate, and it must be dated within 120 days of the filing of the application for guardianship. Consult an attorney for the specific requirements before the doctor conducts the examination which forms the basis for the certificate to ensure the requirements are met. (Slightly different requirements apply for people with intellectual or developmental disabilities.)

Initiate a Guardianship Investigation

If you are concerned about a person who may need a guardianship appointment but are not willing to file for guardianship, you can still initiate a guardianship investigation. Section 1102 of the Texas Estates Code explains how to write an Information Letter to the court so they can initiate procedures to investigate the need for a guardian.

The Information Letter must include:

  • The proposed ward’s name, address, telephone number, county of residence and date of birth
  • The ward’s current type of residence (private residence, health care facility, group home, etc.)
  • A description of the relationship between the author and the proposed ward
  • The names and telephone numbers of the proposed ward
  • Whether the person has been appointed a Guardian of the Person or Estate
  • Whether the person has executed a power of attorney and, if so, the designee's name, address, and telephone number
  • A description of any property of the person, including the estimated value of that property
  • The amount and source of any monthly income of the person
  • The nature and degree of the person's alleged incapacity
  • Whether the person is in imminent danger of serious impairment to the person's physical health, safety, or estate

Guardianship Responsibilities

As a guardian, you must inform the ward of the rights they have retained and seek out support and services to lessen the effects of the guardianship. For more information on the rights afforded to wards, please see the "Rights of Wards" under the Orders & Forms page.

Reporting

Every year you need to file the Annual Report on the Condition and Wellbeing of the Ward. In conjunction with the Court Monitor’s Report, these reports serve to update the Probate Court on the mental, physical, emotional, and living condition of the ward. You can find the Annual Report under the Orders & Forms page. If you are a Guardian of the Estate, the annual accounting may require the services of an attorney.

Report Abuse of Elderly or Disabled

If you have reason to believe that an elderly person or disabled person is being abused, exploited, or neglected, please contact the Texas Department of Family and Protective Services. You can report abuse by phone at 1-800-252-5400, or online at Texas Abuse Hotline.