Frequently Asked Questions
This information is
issued to inform and not advise. This is only general
and basic information and exceptions may exist. You
should seek legal advice from an attorney of your choice to
advise you in your particular information.
What is a guardianship and how do they
A guardianship is a court-supervised administration for a
minor or for an incapacitated person. A person -- called
the guardian -- is appointed by a court to care for
the person and/or property of the minor or incapacitated
person -- called the ward. In some other states,
guardianships are called conservatorships, but in Texas they
are called guardianships.
What types of guardianships are there?
There are two types of guardians and guardianships. A
guardian appointed to take care of the physical well-being
of a ward is called a guardian of the person, while a
guardian appointed to take care of the ward's property is
called a guardian of the estate. In some cases, only
one type of guardian is appointed for a particular ward. In
many cases, both a guardian of the person and a guardian of
the estate are appointed for a ward. (Often, but not
always, they are the same person.)
What are the definitions of "minor" and
A minor is 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. A
minor is considered an incapacitated person. An
adult who, because of physical or mental condition, is
substantially unable to provide food, clothing or shelter
for himself or herself, to care for his or her own physical
health, or to manage his or her own financial affairs is
considered an incapacitated person. The definition
of incapacitated person also includes a person who
must have a guardian appointed to receive funds due the
person from any governmental source.
I think I know someone who meets the definition of an
incapacitated person. What must I do to get a guardian
Texas law has very specific procedures in place for proving
the need for a guardianship and getting a guardian
appointed. These procedures are too complicated for a lay
person to undertake without a lawyer's help, and most courts
will not entertain guardianship applications filed by
non-lawyers. To get a guardianship, incapacity must be
proven by clear and convincing evidence -- a very high
standard. 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, so you should consult an attorney for the
specific requirements before the doctor conducts the
examination which forms the basis for the certificate.
(Slightly different requirements apply for mentally retarded
persons.) The court will appoint an attorney -- called an
attorney ad litem -- to represent the proposed ward,
since the granting of a guardianship takes away some of the
ward's civil rights. Texas courts typically employ the
doctrine of least restrictive alternatives in
guardianship cases -- taking away as few of the ward's
rights as possible and giving the guardian only those rights
and powers as is necessary to protect the ward or the ward's
What are the powers and duties of a
guardian of the person?
It is impossible to include an exhaustive
list of the duties of a guardian of the person here. In
general, a guardian of the person is a fiduciary and
is held to the high standards to which all fiduciaries are
held in caring for the ward. The guardian of the person is
required to post a bond in an amount set by the court to
assure that the guardian fulfills his or her duties. Unless
the guardian's duties are restricted by the court, the
guardian of the person is entitled to the charge and control
of the person of the ward and has the right to have physical
possession of the ward and to establish the ward's domicile,
the duty of care, control and protection of the ward, the
duty to provide the ward with clothing, food, medical care
and shelter and the power to consent to medical, psychiatric
and surgical treatment. However, the guardian of the
personís powers to commit the ward to in-patient psychiatric
treatment is limited. Some families pursue a guardianship
only to discover that the guardian cannot force the ward to
submit to in-patient psychiatric care. Be sure to ask your
lawyer about this if this is one of the main reasons for
seeking a guardianship.
All of this sounds pretty expensive. Is
Yes. Guardianship law is designed to protect the rights and
interests of the ward, and it does so by establishing
procedures intended to assure guardian compliance with the
rules. These procedures necessitate a lot of lawyer
involvement. Establishing a guardianship can be expensive,
and the costs of administering a guardianship of the estate
can easily exceed the annual income of the estate. For this
reason, it is usually a good idea to see if there are any
alternatives to a guardianship before starting down the
My loved one needs the assistance of a
guardian but can't afford it. What can be done?
Alternatives to guardianship should be
considered. If no alternatives are available, some
charitable organizations provide assistance for
guardianships of the estate. Check with the local bar
association or with the county court or probate court in
your area to see if any are active in your area.
are complicated and expensive, but sometimes they are
I was told I need a guardianship for my
loved one. Are there any alternatives?
A guardianship may be the only way to care for the person or
property of a minor or an incapacitated person, but often
there are less costly, less burdensome alternatives.
Determining the best solution depends on the circumstances.
Your lawyer can advise you what is best in your situation.
What is a guardianship?
A guardianship is a court-supervised
administration for a minor or for an incapacitated person.
A person -- called the guardian -- is appointed by a
court to care for the person and/or property of the minor or
incapacitated person -- called the ward. There are
two types of guardians and guardianships. A guardian
appointed to take care of the physical well-being of a ward
is called a guardian of the person, while a guardian
appointed to take care of the ward's property is called a
guardian of the estate. In some cases, only one type of
guardian is appointed for a particular ward. In many cases,
both a guardian of the person and a guardian of the estate
are appointed for a ward. (Often, but not always, they are
the same person.
Do I have to be appointed guardian for my
In most cases, parents are considered to be
the natural guardians of the person of their minor children,
so no court procedure is required to appoint a guardian of
the person. Even though a parent may be the natural
guardian of the person of their minor child, they are
not natural guardian of the estate -- a court
proceeding is always required to become guardian of the
estate. If the child has property or income, in some cases
provisions of the Family Code may permit guardianship of the
estate to be avoided. For example, parents have certain
rights to the income of their minor child, and a managing
conservator has certain rights regarding the child's
property. In many cases, however, a guardian of the estate
will be required if the minor has property. You should
consult a lawyer for an evaluation of your particular fact
situation and advice which is appropriate for you.
My son was injured in an automobile
accident and I expect that he will receive a big insurance
settlement. Does this money have to go into a guardianship?
Yes. There are several non-guardianship
alternatives if the property is being received pursuant to a
judgment, including annuities and a special type of trust
usually called a 142 trust because it is set up under
Chapter 142 of the Texas Property Code. A 142 trust is
similar to an 867 trust. The trustee generally must be a
bank or trust company, and the trust can last until the
minor reaches age 25. A big advantage of 142 trusts over
867 trusts is that there is no annual accounting requirement
and trustee compensation is less restrictive. For these
reasons, banks and trust companies often are willing to take
smaller 142 trusts.
Uncle Benny left my daughter less than
$100,000 without creating a trust. Do I have to set up a
No. One possibility is an 867 trust, discussed above. If
the property is cash and is under $100,000, Texas law has a
procedure where the money may be placed in an
interest-bearing account by the county clerk and held until
the minor reaches age 18. Your lawyer can tell you if this
procedure is a good idea in your case. The interest earned
on the money may not be as great as a trust would earn, and
it will be difficult or impossible to spend the money prior
to the child reaching age 18, but there is no annual
accounting requirement so the costs are reduced.
My child inherited an undivided interest
in real property. Do I have to set up a guardianship to
Maybe not. If the child's interest in the real property is
worth less than $100,000 and if the other co-owners agree,
Texas law has a procedure for getting court approval of the
sale of the property and for placing the child's share of
the proceeds in an interest-bearing account by the county
clerk, where the money is held until the child turns 18.
Your lawyer can tell you if this procedure is available in
How is a
Any interested person may file an application with the
proper court requesting that a guardian be appointed for a
person believed to be incapacitated.
For purposes of guardianship, what is an incapacitated
When a person is unable to provide food,
clothing or shelter for him or herself, to care for his/her
physical needs, or to manage his or her own financial
affairs due to a mental or physical condition, he or she may
be found to be incapacitated, and placed under
guardianship. A minor is also considered incapacitated.
there varying levels of incapacity?
Yes. The doctor treating the person who is
incapacitated must specifically set out in his or her letter
to the court the mental or physical basis for the incapacity
and the extent of incapacity. He or she does so by
answering questions concerning that personís ability to
drive, vote, enter into a contract, manage money, and other
a guardian is appointed, can a person retain certain rights
Yes. A judge may appoint a guardian for an incapacitated
person, but limit the guardianís powers so that all rights
and powers except those granted to the guardian are retained
by the incapacitated person.
types of guardians are there?
Generally, there is a guardian of the person and a guardian
of the estate. The guardian of the person has the duty and
power to provide the incapacitated person with clothing,
food, medical care, and shelter. The guardian of the estate
has the duty and power to manage the incapacitated personís
financial affairs. One person can fill both positions.
And, you may have a guardian of the person only or a
guardian of the estate only; you do not have to have both.
Who may serve as
The court will appoint a guardian for an incapacitated adult
person in the following order of priority:
incapacitated personís spouse;
personís nearest of kin;
eligible person who is best qualified to serve.
Who cannot serve as
A person may not be appointed guardian if the person is a
minor, a notoriously bad person, an incapacitated person, a
person who is a party to a lawsuit effecting the
incapacitated person (with some exceptions), a person who
owes the incapacitated person money unless it is repaid, a
person with adverse claims to the incapacitated person or
his property, an inexperienced or uneducated person, a
person the court finds unsuitable, a person eliminated in a
personís designation of guardian, or a nonresident without a
Is an alleged incapacitated person represented by an
Yes. When a guardianship is filed, the court appoints an
attorney ad litem to represent the interests of the alleged
incapacitated person. The person may also retain his or her
What are the costs involved in a guardianship?
The costs of handling a guardianship include attorneyís
fees, filing fees, attorney ad litem fees, and bond premiums
to be paid out of the incapacitated personís estate. If the
incapacitated personís estate is insufficient to pay for the
cost of the proceeding, such costs may be paid by the county
treasury, if ordered by the court.
What rights does the incapacitated person have?
The incapacitated person has the right to receive a copy of
the application for guardianship and other documents filed
with the County Clerk. He or she is also entitled to be at
the hearing to determine whether he or she is incapacitated,
demand a jury trial and request that the hearing be closed
to the public. An incapacitated person retains all legal
and civil rights and powers, except those designated by the
courtís order appointing a guardian.
How soon can a guardianship hearing be held?
The soonest date to schedule a hearing is the
Monday following the expiration of 10 days after alleged
incapacitated person and certain interested persons have
been personally served with the application for
What happens at the
The person who filed the application must prove the
incapacity through testimony and medical evidence. The
alleged incapacitated person has a right to bring his or her
own witnesses to court and also the right to speak to the
judge. The alleged incapacitated person may also request a
jury trial. The judge or jury will determine if the person
Once appointed, how does a guardian qualify?
The guardian must file an oath and post a bond in the amount
set by the court to insure proper performance of his or her
Does the guardian have reporting requirements to the court?
Yes. The guardian of the estate must file an inventory
within 30 days of qualifying. The inventory must list all
assets of the incapacitated person coming into the
guardianís hands and all debts owed to the estate. The
guardian of the estate must file an annual account to report
all receipts and disbursements. The guardian of the person
must file an annual report on the location, condition and
well being of the incapacitated person.
What if there is an immediate need for the appointment of a
A temporary guardian can be appointed if an
alleged incapacitated person or his or her property is in
the person for whom a temporary guardian has been appointed
have any rights?
That person retains all rights and powers not granted to the
temporary guardian, and are entitled to be served with a
copy of the temporary guardianship application. The Court
must appoint an attorney to represent the alleged
incapacitated person at the time the application is filed.
The court must hold a hearing no later than 10 days after
the date of filing the temporary guardianship, unless the
hearing is postponed, to determine whether there is a need
for a temporary guardianship.
What is the length of a temporary guardianship?
Generally, a temporary guardianship may not exceed 60 days.
However if there is a contest or challenge to a permanent
guardianship application, the court may appoint a person to
serve as temporary guardian until the contest is resolved.
What should I do if I
suspect someone is neglecting, abusing or exploiting an
If a person has reasonable cause to believe that an elderly
or disabled person has been abused, exploited or neglected,
they have the responsibility to report the facts to Adult
Protective Services. Their toll free number is:
Am I required to report
suspected elder abuse?
The law mandates that all suspicion of elder abuse,
exploitation or neglect be reported to Adult Protective
What will happen if
someone finds out that my grown child is hurting me?
If an individual has been physically abused
the law requires that a report be made to the appropriate
law enforcement agency.
What can I do to protect
myself from an abusive caregiver or spouse?
You need to file a report with Adult Protective Services
(1-800-252-5400) and the appropriate law enforcement agency.
(click on About Guardianship)