Adult Guardianship Texas

A Texas Guide to Adult Guardianship
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ABOUT THIS GUIDE
A Texas Guide to Adult Guardianship
With this guide, gain a better understanding of the ins and

outs of guardianship.
This guide will help answer these questions:

• What is guardianship?
• What can guardianship do and how will it help?
• What are the limitations of guardianship?
• What are the alternatives to guardianship?
• Who can be a guardian?
Guardianship
A relationship established by a court of law between a person
who needs help (ward) and a person or entity named to help
the person in need (guardian).
A Texas Guide to Adult Guardianship iii

TABLE OF CONTENTS
ABOUT THIS GUIDE................................................................III

A Texas Guide to Adult Guardianship......................................III
INTRODUCTION TO GUARDIANSHIP........................................1
About guardians........................................................................... 2
Pros and cons of guardianship.................................................. 3
ESSENTIAL POINTS ABOUT TEXAS GUARDIANSHIPS................6

Responsibilities of a guardian or guardianship.................... 6
Limitations of a guardian or guardianship............................. 6
Is guardianship the best choice?.............................................. 7
ALTERNATIVES TO GUARDIANSHIP..........................................8
Alternative: money management program.......................... 10
Alternative: assisted living placement.................................. 11
Is supported decision-making a viable alternative to
guardianship?............................................................................. 12
TEXAS BILL OF RIGHTS..........................................................13
DECISION-MAKING TIME ......................................................14

Make your decision.................................................................... 14
BE PREPARED – GUARDIANSHIP IS NOT AN EASY ANSWER....16

If guardianship is your choice................................................. 17
TYPES OF GUARDIANSHIPS...................................................18
Guardian of the person............................................................. 18
A Texas Guide to Adult Guardianship v

Guardian of the estate.............................................................. 20
Guardian of the person and estate........................................ 22
Temporary guardianship.......................................................... 23
Surrogate decision-maker........................................................ 26
CHANGING OR ENDING GUARDIANSHIPS..............................27

Modification................................................................................ 27
Restoration.................................................................................. 27
Termination................................................................................. 28
HHSC GUARDIANSHIP SERVICES PROGRAM..........................29
SITUATIONS, QUESTIONS AND ANSWERS.............................30

General guardianship................................................................ 30
Aging issues................................................................................. 33
People with intellectual disabilities..................................... 36
ADDITIONAL RESOURCES.....................................................39
Other resources.......................................................................... 41
Legal resources........................................................................... 43
GLOSSARY............................................................................44
NOTES..................................................................................48
vi Guardianship Services
INTRODUCTION TO GUARDIANSHIP
Sometimes, due to the effects of aging, disease or injury,
people need help managing some or all of their daily affairs.
One way of doing this is the establishment of a guardianship.

A guardianship is a relationship established by a court of law
between the person who needs help (called a ward) and the
person or entity (called a guardian) named by the court to
help the ward.
This guide examines the responsibilities, tasks and limits of a

guardian and suggests alternatives to guardianship. It covers
general aspects of guardianship and provides information
specific to Texas. The guide addresses only adult guardianship
and does not cover guardianship of minors.
Since guardianship affects a person’s rights, it is important

to know the implications of guardianship and explore other
alternatives and choices before taking steps to have one
established. The information in this guide is provided to help
you decide which answer — guardianship or another option
— is the best.
Some people need a guardian for their entire adult life

because of long-term disabilities, while others may need a
guardian as a result of a brain injury or other traumatic event.
Still others may need a guardian as age and health problems
affect their ability to provide for themselves. In many cases,
once a guardian is appointed, the guardianship becomes
permanent. There are some exceptions, particularly when
circumstances change and a guardianship is no longer needed.
A Texas Guide to Adult Guardianship 1

About guardians
Guardian and ward are legal terms

used to indicate the relationship
between someone who protects
another (the guardian) and the
person being protected (the ward).
In Texas, a person does not have
a guardian until an application to
appoint one is filed with a court,
a hearing is held and a judge
appoints a guardian. When the court
appointment is made, the person
the guardian cares for becomes
a ward of the court. Individuals,
entities or guardianship programs
can be appointed guardians.
Guardians have legal responsibilities and are required to

perform certain tasks when providing assistance to their
wards. The court decides whether to place limitations on a
guardian’s authority. The court also establishes how much
freedom wards have to make their own decisions. The court
looks at the individuals and programs willing to be guardians
and bases the appointment of guardians on several factors:
• Preference is given to appointing family as guardian
rather than guardianship programs or the Texas Health
and Human Services Commission (HHSC).
• The court may disqualify any person or program from

being named guardian.
• Certain criminal convictions are grounds for disqualifying

a potential guardian.
• Owing money to or otherwise being indebted to the

proposed ward is grounds to disqualify a prospective
guardian unless the debt is repaid before appointment.
2 Guardianship Services
Pros and cons of guardianship
The chart below lists some of the benefits and disadvantages

of establishing a guardianship. It is not meant to be an all-
inclusive list but is presented to highlight relevant information.
PROS CONS
Guardianship protects Guardianship is the most
vulnerable people from restrictive action taken to
those who would abuse, protect a vulnerable person.
neglect or exploit them.
Guardians support their Wards can lose many or

wards by helping them most of their basic rights,
handle their personal depending on the type of
or business affairs and guardianship established.
sometimes both.
Guardians advocate for Family members may no

their wards, either make longer be involved in
decisions for them or help decision-making if they are
them make decisions, not appointed guardian.
including: They may no longer have
• Where they will live. unlimited access to the
ward.
• Medical treatments
they will receive.
• Who has access to
the ward.
Guardianship is a legal Establishing a guardianship

process, requiring the requires the services of an
services of an attorney, attorney and can be time
which is designed to consuming and expensive.
provide maximum
protection to a person.

PROS CONS
When a guardianship is Annual accounts require the
established, the protected assistance of an attorney.
person becomes a ward If the ward has sufficient
of the court. Reports or funds, the legal fees may be
accountings to the court reimbursed and court costs
are required annually or may be paid from the ward’s
sometimes more frequently. estate. However, if the ward
New letters of guardianship does not have adequate
are required annually. funds, the guardian may
have to pay the fees, seek
low-cost or free assistance,
or seek payment from
the court under certain
conditions. The guardian
may also pay or seek a
waiver of the court costs
under certain conditions.
Annual reports of the
person do not require the
services of an attorney.
A proposed ward must be The proposed ward

examined by a physician might not cooperate
who furnishes the court a with obtaining a capacity
written letter or certificate assessment. In those cases,
of medical examination a court order may be
(CME) addressing the required to obtain one.
person’s alleged incapacity.
A document indicating a
diagnosis of intellectual
disability (subject to the
requirements in statute)
may be submitted to the
court in appropriate cases.
PROS CONS
The letters of guardianship If the letters of guardianship
expire if they are not are not renewed as
renewed annually (they required, the guardian
expire one year and four loses authority to act and
months after issuance). the court may remove the
guardian.
Terminating or modifying Once a guardian is

a guardianship is a legal appointed, terminating or
process requiring the modifying a guardianship
services of an attorney (other than by death of the
involving a court hearing ward) requires the services
and requiring enough of an attorney and a court
evidence to show (called a hearing.
preponderance of evidence)
that the changes are best
for the welfare of the ward.

ESSENTIAL POINTS
ABOUT TEXAS GUARDIANSHIPS
Guardianship will not fix all of a person’s problems.
Responsibilities and limitations applicable to guardians and
guardianship are discussed below.
Responsibilities of a guardian or guardianship
A guardian:
• Must meet the legal responsibilities established by the

court, which may, depending on the type and limitation of
guardianship, include:
• Paying the ward’s bills.
• Making decisions about, and maintaining, the ward’s

assets to the greatest extent possible.
• Ensuring the ward’s medical and living needs are met to

the extent allowed by the ward’s funds and resources.
• Is responsible for filing annual reports or accountings with

the court appointing the guardian.
• Is required to ask for the court’s permission and approval

for many of the actions he or she will take.
Limitations of a guardian or guardianship
A guardian:
• Cannot prevent a ward from making bad decisions

and choices.
• Is not responsible for bad decisions and choices the ward

may make or for illegal acts they may commit.
• Is not responsible for personally funding the ward’s living
expenses or for the ward’s past debt.
• Cannot use force to make a ward take medication.
• Does not personally supervise the ward around the clock.
• Cannot place a ward in a mental health facility.
Is guardianship the best choice?
Because having a guardian takes away a person’s rights,

it should be the last and the best available choice. Before
deciding to seek a guardianship, you should examine
all other options or alternatives. In certain situations,
guardianship is the best choice. However, you should first
look at other options and rule out less restrictive alternatives
that may allow the person being protected to maintain some
or all of their independence. Consider the following before
making the choice:
• Is a less restrictive alternative available? Has another

option been tried but was unsuccessful? If so, might it
possibly work now?
• What alternative resources are available to support a less

restrictive alternative?
• Is the person in question unable to make his or her own

decisions or to provide for himself or herself?
• Is this person nonverbal, unable to communicate with

caregivers and unable to make responsible decisions?
• Is a surrogate decision-maker or agent under a power of

attorney available to make decisions for the person?

ALTERNATIVES TO GUARDIANSHIP
Choosing an alternative to guardianship has advantages
and disadvantages. An alternative encourages people to
be independent, allows them to keep some or all of their
rights, and helps them retain a sense of dignity and purpose.
Additionally, choosing an alternative may delay or prevent the
need for a guardian.
Possible alternatives to guardianship include:
• Finding someone who will act as a supported decision-

maker to help the person with disabilities.
• Finding someone who will help pay bills and manage

the person’s money. Money management programs are
available in parts of Texas.
• Establishing joint checking accounts.
• Designating a representative payee to receive the

person’s government benefits.
• Helping the person designate someone to make decisions

for him or her when needed. Documents used to do so
may include a living will, a medical power of attorney or a
durable power of attorney. An attorney may identify other
possibilities, such as establishing a trust fund for the
person’s money.
• Helping the person identify a surrogate decision-maker
willing to make health care decisions as allowed by law in
certain circumstances.
• Finding and accessing available community services, such

as home-delivered meals, transportation services and
special services for people with disabilities.
• Helping the person establish 24-hour shared attendant care

and emergency response services if available in the area.
• Accessing community-based Medicaid waiver programs

the person is eligible for, such as:
* Home and Community-based Services
* Texas Home Living
* Community First Choice
* Community Living Assistance and Support Services
* Deaf-Blind Multiple Disabilities
* Medically Dependent Children Program
• Accessing Medicaid entitlement programs, such as:

* Primary Home Care
* Community Attendant Services
* Day Activity and Health Services
• Finding out if the person is eligible for Medicaid Hospice

and helping to set up hospice.
• Locating an assisted living, nursing facility or intermediate

care facility for individuals with ID (ICF/IID).
• Finding services available through the local area agency

on aging for people 60 and older, their families and
other caregivers.

DOES KATHY NEED
GUARDIANSHIP?
On her next birthday, Kathy will turn
75. Her husband, Benjamin, will soon
be 80. Benjamin, who has cancer
and can no longer take care of their
business affairs, has repeatedly
assured Kathy they have plenty of
money. Kathy has never worked or
handled any of their money. Despite
Benjamin’s reassurances, she is
distressed and overwhelmed.
Gordon, Benjamin’s long-time friend, offered to help them out.

Kathy was grateful and gave him access to their bank accounts.
But Gordon did not pay their bills, and the utilities were cut
off. When Kathy tried to pay, her checks bounced. When she
checked with the bank, she was told that her checking account
was overdrawn. The bank informed her Gordon had written
several large checks. Kathy is scared and knows she needs help.
Alternative: money management program
Kathy definitely needs help to manage her money and to

determine if she and Benjamin were financially exploited
by Gordon. If they were exploited, an investigation by Adult
Protective Services (APS) may be requested. Kathy can also
contact the local area agency on aging (AAA) to see if a money
management program is available to sort out their financial
affairs. Guardianship most likely will not be needed once
this couple has supports in place to help them manage their
money. Kathy may also find other resources through the AAA
which will support her as a caregiver for her husband.
THE BEST CHOICE
FOR LILLIAN
Last year, Lillian fell and broke
her hip. A friend found her lying
on the floor three days later.
By the time she got to the
hospital, she was confused
and weak. After being in the
hospital for two weeks, she was
sent to a nursing facility. Lillian
did not want to stay there and
wanted to go home.
However, medical providers and social workers told her she

needed to have someone check on her frequently and help with
medications and her physical needs. Lillian’s daughter lives in
another state and offered her a home, but Lillian does not want
to move. Lillian and her daughter asked the social worker if
there was another option instead of a nursing facility. Several
resources for alternative living settings were suggested.
Alternative: assisted living placement
Lillian and her daughter talked about the situation and

agreed Lillian could not go home safely. Lillian’s daughter
located an assisted living retirement community. Someone
now checks on Lillian daily and often more frequently. Lillian
is happy and relieved she does not have to worry about
being left alone for days if she is sick or hurt. She says the
best thing is having her own furniture and possessions,
including her beloved cat, Sissy.

Is supported decision-making a viable
alternative to guardianship?
There are many alternatives that may prevent guardianship

from being necessary. In 2015, the Texas Legislature passed
laws to establish a supported decision-making agreement
as an informal alternative to guardianship. Through this
agreement, people with disabilities can make their own
decisions and remain in charge of their lives. This is done
with the support of people who agree to provide on-going
assistance to the person. The supporter does not make
decisions for the person, but provides support and assistance
by making sure the wishes of the person with disabilities
are known and carried out. Anyone who wants to establish a
supported decision-making agreement should:
1. Choose people they trust to help them make life

decisions.
2. Ask them if they are willing to be their supporter.
3. Determine what type of decisions they want help with

and be sure the supporter knows what they will be
asked to do. The supporter may or may not provide
help in all areas.
4. Complete a supported decision making agreement.
This agreement does not have to be completed by an attorney;

however, the assistance of an attorney may be beneficial.
For more information on this agreement, refer to Disability
Rights Texas at 1-800-252-9108, www.disabilityrightstx.org/
resources/sdm-ARC, or The Arc of Texas at
https://www.thearcoftexas.org/alternatives-to-guardianship/.
A supported decision making agreement can be cancelled by

either party at any time.
TEXAS BILL OF RIGHTS
Senate Bill 1882, 84th Texas Legislature, established a bill

of rights for wards under guardianship, which contains 26
specific rights for wards. The Rights of Wards can be found in
the Texas Estates Code in Subchapter H, Section 1151.351 at
www.statutes.legis.state.tx.us/Docs/SDocs/ESTATESCODE.pdf
and is included here as an Appendix.

DECISION-MAKING TIME
Make your decision
This list of steps will guide you through the guardianship

decision-making process. These steps may help identify a
different option or reassure you guardianship is the right
decision.
1. Ask yourself why you believe a guardianship is needed.

Make a complete list of your reasons and write down
why you think guardianship will solve these problems.
Be specific. Remember, a guardian cannot protect a ward
from making bad choices and cannot use force to make
a ward do certain things, such as take medications or
refrain from associating with certain people.
2. Make a list of possible community resources, such as day

programs, home delivered meals and transportation services.
3. Think of family, friends and members of your place of

worship who might be willing to help. Make a list of the
support systems in the person’s life.
4. Find a person or agency to review your list and help

you find contacts in the areas you have identified. They
may be able to identify even more resources. A good
place to start is your local area agency on aging (AAA)
or aging and disability resource center (ADRC). Look for
possible resources on the HHSC website at:
hhs.texas.gov/find-adrc.
5. Ask people or local agencies to create a list of possible

options for the person.
6. Involve family members and friends in your problem

solving. Do not be afraid to use people outside the
situation as sounding boards. They may have good
suggestions.
1. Enlist the help of the person’s family or primary care
physician as much as you can and involve the person in
the process as much as possible.
2. Ask a final question, “Have I done everything possible to

allow this person to maintain his or her independence
and decision-making powers before I file for
guardianship?”
3. If you believe a guardianship is necessary, obtain the

services of an attorney licensed by the State Bar of Texas.
4. Do not be afraid to change your mind if the situation

changes or you identify new options.

BE PREPARED – GUARDIANSHIP
IS NOT AN EASY ANSWER
Guardianship is not an easy, quick or inexpensive process.
It requires the services of a licensed attorney because it
involves a legal action against the person in question, which
may result in a loss of their rights. Be prepared for the person
to resent your actions and possibly become quite angry.
People who have been self-supporting and self-sufficient
seldom recognize decline in their mental or physical state.
They seldom know or admit when they need a guardian or
help with handling their affairs.
The legal process of guardianship will require you to go to

court and, most likely, testify. If a guardian of the estate is
appointed, a bond is required. The guardian can ask the court
for reimbursement from the person’s estate for legal fees and
the cost of the bond. In the case of guardian of the person only
(see page 18), the court may authorize the estate to pay for
the cost of guardianship (e.g., attorney fees, bonds) if the ward
has adequate funds.
The court will require a certificate of medical examination

(CME) or a document establishing intellectual disability,
depending on the type of alleged incapacity. If the proposed
ward will not willingly see a licensed physician, the court may
order him or her to do so. As part of the evaluation process,
the physician answers specific questions about the person’s
mental and physical capabilities. The physician gives his
or her professional opinion about whether the person has
capacity to make his or her own decisions, vote, drive, marry
and carry out other specific activities.
Once a guardian is appointed, there are ongoing legal

requirements which may require the assistance of an attorney.
A guardian must file annual reports or accountings with a
court depending on the type of guardianship. There is a cost
to obtain required bonds from a private bonding company.
If guardianship is your choice
If, after considering all options, you decide guardianship is

the best choice, you now need to determine what type of
guardianship best addresses the situation. The first decision
you must make is to retain an attorney to represent you. Your
attorney should ask the court to appoint a guardian with only
those powers or duties necessary to protect the person. Once
a petition for guardianship is filed, it becomes the court’s
decision whether to appoint a guardian and if so, whether to
appoint a full or limited guardian. Establishing a guardianship
also requires a written opinion from a doctor — often the
person’s primary care physician or a physician specialist —
indicating the person in question lacks the capacity to make
his or her own decisions. A court will make a determination
if, because of a mental or physical condition, the person is
substantially unable to manage their personal or financial
affairs. Strongly consider these options:
• Filing for, or asking the court to appoint, a limited

guardianship so the person maintains maximum
independence yet gains the protection of a guardian.
• Asking the court to modify a limited guardianship if the

situation continues to deteriorate.
• Asking the court to restore some or all of the ward’s rights

if the conditions and circumstances improve.

TYPES OF GUARDIANSHIPS
There are different types of guardianships available in Texas.
They are:
• Guardian of the person, full or limited
• Guardian of the estate, full or limited
• Guardian of the person and estate
• Temporary guardianship
The different types of guardianship are discussed on the

following pages. This information may help you decide what
type of guardianship is appropriate.
Guardian of the person
As a full guardian of the person, you have the legal right

and the responsibility to make all personal decisions for
the ward.
The guardian decides:
• Where the ward will live.
• Whether to limit contact with family and friends.
• What medical or psychological treatment the ward

will receive.
• Where the ward can go.
What personal rights the ward will have (e.g., drive a car, have
a cell phone, date) within the limitations of the court order.
GREG’S STORY
Greg suffered a closed-head
injury in a motorcycle accident
several years ago. He has
problems making decisions
and remembering to take his
medications. Greg also has anger
issues. Until recently, Greg’s
mother was taking care of him;
however, she became sick and
cannot care for him anymore.
The money Greg received from
his accident is in a trust.
Greg’s guardian, Kevin, helps him make decisions, such as what

to buy and how much money to spend. Kevin ensures Greg gets
medical care and also found a great place for him to live, where
he receives help with his medications. Kevin also arranged for
Greg to work with someone on his anger issues. Because Greg
has a guardian, he has his own apartment and can do a lot of
things for himself. He retained much of his independence.
As a limited guardian of the person, the guardian does not

make all the ward’s decisions. For example, the court may
make the guardian responsible for deciding what medical care
the ward will receive, or where the ward will live, but the court
may let the ward make his or her own decisions about getting
married, voting or driving. In a limited guardianship, the judge
says what decisions the ward can make and states the ward’s
rights in the written guardianship orders. In a full guardianship
of the person, the guardian has authority over all aspects of
the ward’s care.

Guardian of the estate
As a guardian of the estate, you have the legal right and

responsibility to handle all of the ward’s money and other
financial affairs; however, you are not personally responsible
for the ward’s debts just because you are guardian of the
estate. The ward’s money is used to pay their bills.
The guardian decides (with court approval):
• What should be done with the ward’s property.
• Which bills to pay and when.
• How to invest the ward’s money.
• Whether or not to enter into a contract to buy or sell property.
Even if a ward previously made a will leaving property to

someone else, as guardian of the estate, you determine if the
ward still needs this property or the proceeds from the sale. If
the ward needs money to pay bills and cover living expenses,
then you may, with court approval, have to sell or dispose of
their property and other belongings — including things the
ward may have previously promised to others. This decision
may anger others who thought they would inherit the ward’s
belongings and property. You should tell the judge about the
ward’s will and any promises made to other people. If and
when the court agrees the property needs to be sold, you may
then sell it and use the money for the ward’s care and bills.
As a limited guardian of the estate, the court says you are

responsible for handling most, but not all, of the ward’s
financial affairs. The court may allow the ward to make many
of his or her own decisions. For example, the court may
allow the ward to decide whether to keep or sell property,
yet require you to routinely pay the ward’s bills. In a full
guardianship of the estate, the guardian has authority over all
aspects of the ward’s estate.
CLAUDE’S STORY
Claude, age 78, is a veteran
who is experiencing memory
problems and forgetting how to
do things. Claude’s wife, Jean,
died a few years ago and since
then, he has struggled to take
care of himself and his finances.
Until recently, Claude’s
grandson Tommy was living
with him and helping him out.
Claude thought everything was going fine until he discovered

Tommy was not paying his bills and was spending his
grandfather’s money on himself. Claude almost lost his house
because the payments were not made. He asked a friend for
help. The friend became concerned and made a report to
APS. When APS investigated, they determined Tommy had
exploited his grandfather by taking a large sum of money.
APS made a guardianship referral to HHSC, and the agency
assessed Claude to determine if he was appropriate for
guardianship. The assessment indicated Claude needed
help to manage his financial affairs and to protect him from
further exploitation. HHSC filed a petition asking the court to
appoint the agency guardian.
At the court hearing, the judge found Claude to have sufficient

capacity to make his own medical and personal decisions.
However, the judge appointed HHSC to be guardian of Claude’s
estate. HHSC took over paying Claude’s bills and worked out
a payment plan with the mortgage company. Claude can still
make most of his own decisions. He no longer worries about
someone taking all his money. Claude knows his bills are being
paid every month.

EVELYN’S STORY
Evelyn and her husband, Spencer,
were in a car accident four years ago
and Spencer died as a result of his
injuries. The wreck left Evelyn with
physical trauma, including head
injuries. Evelyn now has problems
remembering important information
and needs someone to help her.
She needs help remembering to
take her medications, getting to
the doctor and taking care of daily
activities. Evelyn does not remember
how to pay her bills. She does not know how much money she
has, nor can she remember how she spent it. In fact, Evelyn gets
extremely anxious if she has to handle money at all.
Evelyn was awarded enough money in an insurance settlement

to take care of her for the rest of her life. A judge made sure the
money was put in a trust and appointed a family member to
be her guardian of the person and estate. This relieved many
of Evelyn’s anxieties and she is coping better with her physical
limitations. Evelyn is very grateful she doesn’t have to worry
about what is going to happen to her in the future.
Guardian of the person and estate
A court may appoint someone to be both guardian of the

person and of the estate. If this happens, the guardian has
the rights and responsibilities established by the court. Those
duties include the duties listed under the previous items,
guardian of the person and guardian of the estate (pages
18–21) of this guide. In a full guardianship of the person and
the estate, the guardian has authority over all aspects of the
ward’s care and estate.
Temporary guardianship
Circumstances sometimes require immediate action to protect

a person or their estate or both. A temporary guardianship
may be used to address imminent danger and will sometimes
resolve the problems. At other times, a permanent
guardianship is the appropriate answer.
Temporary guardians have the authority to handle specific

circumstances. In Texas, a temporary guardianship is in
effect for 60 days from the date it is established, unless it is
contested in court. Before deciding if a temporary guardian
is needed, the court ensures certain legal requirements are
met, including:
• Substantial evidence the person in question may be

incapacitated.
• Imminent danger to the person or the person’s estate.
• Probable cause indicating the person in question or the

person’s estate requires an immediate appointment of
a guardian.
A temporary guardianship is not a finding of permanent

incapacity. If the temporary guardianship does not resolve
the problems, you may apply for a permanent guardianship.
Following are two examples of the use of a temporary
guardianship.

CASEY’S STORY
Sixty-five year old Casey works
full-time and enjoys an active life.
A few months ago, he became ill
and experienced mental confusion.
Casey says he just could not think
straight. His family tried to help
him but he would not let them
take him to the doctor. One day,
Casey collapsed and ended up in
the emergency room. He refused
treatment and returned home
without receiving medical care.
As his health declined, Casey became unable to work and
handle his affairs. A concerned party made a referral to APS.
After determining Casey was suffering from self-neglect, APS

made a guardianship referral to HHSC. A HHSC guardianship
assessment showed Casey needed assistance. HHSC filed an
application to be appointed Casey’s temporary guardian.
At the hearing, which Casey attended, the court appointed
HHSC as temporary guardian. HHSC ensured Casey received
medical treatment and took care of his other affairs. Within
two months, Casey’s health improved and his confusion
cleared up. Casey was able to resume making his own decisions
and returned to work. HHSC did not file an application for a
permanent guardianship and the temporary guardianship was
allowed to expire. This incident served as a wake-up call for
Casey. He gave his daughter the legal right to make medical
and financial decisions for him if something like this were to
occur in the future.
MITCH’S STORY
Mitch, age 62, has a disability
and requires treatment for
several serious medical
conditions. Sometimes his
physical condition interferes
with his ability to make medical
decisions. When Mitch’s
physical condition worsens,
his bills often do not get paid.
The last time Mitch was in the
hospital for several weeks, he
was evicted from his apartment.
Mitch recognized he needed help. The hospital social worker
discussed the possibility of a guardian with Mitch. He did not
want a permanent guardian, so he asked his sister Brenda to
help him.
Brenda consulted with an attorney once Mitch became

receptive to the idea of receiving help from her. She sought
a temporary guardianship, which gave her the authority to
resolve Mitch’s most urgent problems. With those problems
resolved, the temporary guardianship was allowed to expire.
When Mitch’s condition improved, he gave Brenda power of
attorney and signature authority on his bank accounts so
she could handle his affairs when he is unable to do so. Now,
when Mitch is ill and unable to make decisions or pay his bills,
Brenda takes over for him.
The temporary guardianship allowed Mitch’s case to stabilize

and gave an opportunity to establish protections for him. With
Brenda’s assistance, a permanent guardianship was avoided.
As Mitch says, “When I am out of the hospital and doing OK, I
can take care of myself and handle my own money. I want to be
as independent as possible.”

TANISHA’S STORY
Tanisha, 28, has lived in a state
supported living center for the past
10 years but she has an opportunity
to move to an intermediate care
facility (ICF/IID). Tanisha’s brother
and a sister are interested in helping
her make decisions, but her brother is
concerned about this responsibility.
Both siblings want to know what
would happen if making Tanisha’s
decisions becomes too much for them.
Tanisha’s brother or sister may serve in the role of a surrogate
decision-maker for her once she is in the ICF/IID. Should they later
decide not to make her medical decisions, the ICF/IID may request
a volunteer committee to do so. The availability of a surrogate
decision maker may negate the need for a guardian.
Surrogate decision-maker
Texas law allows someone without a legal guardian to have

a family member serve as a surrogate decision-maker in
certain settings. A surrogate decision-maker is different than
a guardian. Becoming a guardian results from a legal process
where the court appoints the guardian while becoming a
surrogate decision-maker does not require court action as
long as certain criteria established in the law are met.
The Surrogate Decision-Making Program (SDMP) managed by

Texas Health and Human Services Commission is a legislatively
mandated program that allows a family member or a committee
of trained volunteers to make decisions for people with
intellectual and developmental disabilities who lack capacity to
make certain treatment decisions for themselves and have no
legal guardian. The program serves people who receive services
through the intermediate care facility for individuals with ID or
related conditions (ICF/IID) program.
CHANGING OR ENDING GUARDIANSHIPS
Modification and restoration are the two types of legal actions

approved by a court that change an existing guardianship. If a
person’s rights are restored, then the guardianship is ended,
or terminated. If the powers of guardianship are increased
or decreased, the guardianship is modified. Termination of a
guardianship can occur as a result of restoration or other event
such as the death of a ward. More information is provided below
about the legal actions and termination of a guardianship.
Modification
When a ward’s condition improves or deteriorates, the ward or

another interested party may request the court to modify an
existing guardianship order. For example, if someone’s mental
condition improves sufficiently to allow them to manage some
funds, a modification may be warranted. This modification
may allow them to manage a set amount of money although
they still have a guardian. When it seems appropriate, the
ward or another interested person may file an application with
the court asking for a modification. The court may also modify
the guardianship on its own. The ward can send an informal
letter to the court instead of filing an application. No one
should interfere with or prevent the ward from sending this
letter to the court.
Restoration
There are times when a guardianship is no longer necessary

because the ward’s condition and circumstances significantly
improve. At other times, the ward may believe he or she no
longer needs a guardian. In either of these circumstances, the
ward or another interested person may file an application with
the court asking for the ward’s rights to be restored, or

the court may restore the ward’s rights on its own. As with
modification, the ward can send the court an informal letter
requesting restoration of their rights instead of filing an
application. It is important no one interferes with or prevents
the ward from sending such a letter to the court.
Before a guardian is appointed, there is a legal requirement

to furnish clear and convincing evidence of incapacity.
However, when restoring a person’s rights, the law does not
require the same level of evidence. Instead, the law requires
a preponderance of evidence for restoration, which is a lower
level of proof. The ward has the right to be present for any
hearing to create a guardianship, modify a guardianship or to
restore rights.
Termination
A guardianship can be terminated because of changing

conditions and circumstances. As previously indicated, when
a ward’s rights are restored, the guardianship is terminated.
In other cases, a guardianship may no longer be necessary
as the problems have resolved themselves. In others, the
ward may have died. Depending on the type of guardianship,
the guardian is (or may be) responsible for making funeral
arrangements, distributing or disposing of property, and
completing legal duties relating to filing a final report and/or
final account as required by law. Anytime a ward’s rights are
restored or the ward dies, the former guardian is no longer
responsible for handling the ward’s affairs beyond those final
duties required by law. Consult with an attorney to determine
what types of actions need to be taken.
An individual guardian’s role ends or terminates if a successor

guardian is appointed. The guardianship continues, but with a
new guardian. Anytime a successor is appointed and qualifies,
the former guardian is no longer responsible for handling the
ward’s affairs beyond those final duties required by law.
HHSC GUARDIANSHIP SERVICES PROGRAM
The Texas Health and Human Services Commission (HHSC)

has a Guardianship Services program. People served by
this program are referred by the Adult Protective Services
(APS) or Child Protective Services (CPS) divisions of the
Texas Department of Family and Protective Services (DFPS).
In certain limited circumstances, courts may make direct
requests to the HHSC program.
To be referred by APS to HHSC for guardianship, the person

must either be an adult with a disability, or be 65 or older
and a victim of abuse, neglect, including self-neglect, or
exploitation. CPS referrals are minors in CPS conservatorship
(which ends at adulthood) who appear to meet the adult
definition of incapacity. Before filing an application for
guardianship, HHSC will:
• Review the case file and referral information furnished by

APS or CPS or the court.
• Complete a full and detailed guardianship assessment of

the person’s conditions and circumstances.
• Look for less restrictive alternatives and alternate

guardians.
• Ensure the person has a source of funds to pay for their care.
• Obtain a CME or a document establishing intellectual

disability depending on the type of alleged incapacity.
• Determine if guardianship is the right course of action and

will resolve the person’s problems and protect him or her.

SITUATIONS, QUESTIONS AND ANSWERS
General guardianship
Situation 1:
My sister keeps taking drugs and making horrible choices.
She has been arrested several times. I am thinking about
applying to become her guardian so I can control her money
and her choice of companions. What type of guardianship
should I seek?
Answer: Being your sister’s guardian will not stop her from
taking drugs. You cannot keep her from breaking the law.
Unless she is in a controlled environment, she may continue to
hang around with bad companions. As guardian of the estate
you would control her money, and not having access to money
to support her drug habits may increase her criminal activity.
As guardian of the person, you may determine where she lives,
but it is very difficult to keep an adult from running away. You
may seek treatment for her, but you cannot force an adult to
undergo treatment. For most addicts, voluntary treatment
for addiction is the only option unless a court orders drug
rehabilitation treatment. You may want to consider asking a
court to do so. If so, contact an attorney to discuss this and
other options. You can also contact the Texas Department of
State Health Services (DSHS) at www.dshs.texas.gov/substance-
abuse for additional information about substance abuse.
Situation 2:
A private professional guardian was appointed for my uncle.
The guardian will not allow family members to visit him. We do
not believe the guardian is taking care of him. We want to have
our uncle moved closer to us so we can visit and be involved
with him, as we are his only family. Who can we complain to?
Answer: Try expressing your concerns to the guardian. Ask
him or her to allow you to visit and to allow your uncle to be
moved closer to you. You may also ask the guardian to allow
you to be designated successor guardian. If talking with
the guardian is not an option, then contact the court which
created the guardianship and express your concerns. You
may also want to consider contacting an attorney to discuss
your options and see if you can be appointed guardian for
your uncle.
Private professional guardians are certified by the Judicial
Branch Certification Commission. If you have unresolved
complaints about the guardian, you can contact the
commission. If you are concerned about the treatment of an
older Texan or someone with a disability, you can call 1-800-
458-9858 to contact HHSC Consumer Rights and Services.
Employees of Consumer Rights and Services take complaints
about the treatment of people who receive services in long-
term care facilities or in their homes. They also take incident
reports from long-term care service providers. They can
answer your questions about HHSC programs and services.
If you believe a guardian has abused, neglected or exploited
a ward in the community, call 1-800-252-5400 to make a
report to APS.
Situation 3:
My friend’s guardian recently died. I know my friend is not
getting to her medical appointments, and I worry about what
is happening to her. What happens now? Who becomes the
guardian? Is there anything I can do to help her?
Answer: Until a new guardian is appointed, there is no
one to make decisions for your friend. You, or anyone else
who is concerned about her, should notify the court of the
guardian’s death. This can be done by calling or writing to
the court that created the guardianship. If you do not know
which court, contact the court in the county where your
friend lives and, if possible, provide the name of her guardian
and the date the guardian was appointed. Another option is
to contact APS if you believe your friend, who is living in the
community, is experiencing neglect (including self-neglect).
They can investigate and determine what needs to be done.

You can make a confidential report by phone to the Texas
Abuse Hotline at 1-800-252-5400 or go to txabusehotline.org
to make a report.
Situation 4:
My mother has schizophrenia and is off her medication. She
needs to be committed to a state hospital. If I become her
guardian, can I commit her for treatment?
Answer:
A guardian cannot commit someone to a mental health
facility for treatment without following the same mental
health court commitment process used for people without
guardians. Guardianship and mental health commitment
are two separate legal proceedings and may be determined
in different courts or the same court. As an interested party,
you can file a sworn written application asking the mental
health court to order mental health services for your mother
without having to become the guardian. If you do file this
type of application, you must include written information
from a physician regarding your mother’s mental illness and
evidence of your mother being a danger to herself or others.
Other options are for you to ask the county or district
attorney or other adult to file the sworn written application
or you can contact law enforcement assigned to mental
health matters. If they agree with the need for your mother to
receive evaluation or treatment, they can take the necessary
legal steps without your involvement. When your mother
is responding well to treatment, ask her to specify her
treatment preferences by executing a declaration for mental
health treatment before the need for treatment arises again.
Situation 5:
My father needs a guardian, and I am willing to help him. If I
become his guardian, am I responsible for his debts? Also, is
it expensive to become someone’s guardian?
Answer: Guardians are not personally responsible for their
ward’s debts unless they agree to be. If you become guardian
of the estate, you will pay your father’s bills using his money.
The cost of becoming a guardian varies, depending on the
type of guardianship sought, whether or not it is contested,
and other factors. If you are appointed guardian, you can ask
the court for permission to reimburse yourself for the legal
fees from his money if he has sufficient resources.
If you do not have money to file for a guardianship, see if
you can locate someone to provide free or low-cost legal
services (see Legal Services, page 44). You may want to
contact your local legal aid society and ask to be referred
to an attorney who will work with you. In addition to legal
fees, the court will ask you to provide a bond. However, your
attorney can ask the judge to work with you on the amount
of the bond.
Aging issues
Situation 1:
My mother has Alzheimer’s disease. She is increasingly
forgetful, and I discovered she has not paid any of her bills.
Do I need to obtain a guardianship?
Answer: A person with Alzheimer’s disease will continue
to deteriorate. While a guardianship may ultimately be the
answer, it may not be the right solution now. Explore all
the available alternatives. Talk to your mother about the
situation. Find out if she has an advance directive for health
care and end-of-life decisions. Find out what she wants
to happen. This conversation may be difficult for both of
you, but it is necessary. Consider your mother’s condition
and how fast her disease is progressing. Although your
mother has Alzheimer’s disease, she may still be able to
make decisions. If so, a guardianship may be avoided for a
significant time. Only a physician can assess your mother’s
disease and her capacity. If the physician says her disease
has not yet affected her ability to make decisions, you and
she may want to discuss with an attorney whether she has

sufficient capacity to grant you or someone else medical
power of attorney and durable power of attorney so her
affairs can be managed. You and she may also discuss
with the attorney the possibility of selecting a guardian in
advance by signing a designation of guardian. Also, discuss
whether she has sufficient capacity to allow you to become
a joint signatory on the bank accounts. The attorney may
speak to your mother separately to confirm her wishes and
your involvement.
Situation 2:
I am becoming my mother’s guardian. Someone told me I
have to become a certified guardian. How do I comply and
what is required?
Answer: You are not required to become a certified guardian.
In 2005, the Texas Legislature passed a law requiring
certain professionals to become certified guardians. Family
members, friends, volunteers for programs, certain financial
institutions, and attorneys who serve as guardians are
exempt from certification provisions. People required to be
certified must pass a comprehensive examination and meet
other qualifications. They must also pass a criminal history
check from both the Texas Department of Public Safety and
the Federal Bureau of Investigation. Those required to be
certified include private, professional guardians who are
not attorneys, employees of local guardianship programs
and employees of the Texas Health and Human Services
Commission who provide guardianship services.
Situation 3:
My father is not taking care of himself. He refuses to bathe
or shave and is living in filthy conditions. I am also worried
about some of his new companions. What does it take to have
someone declared incapacitated?
Answer: In Texas, adults are considered to be incapacitated
if, because of a physical or mental condition, they are
substantially unable to provide food, clothing or shelter for
themselves, care for their physical health, or manage their
own financial affairs. It is up to a court to determine if a
person is incapacitated. A complete definition can be found
in Section 1002.17 of the Texas Estates Code.
Sometimes adults decide they are not going to care for
themselves and their personal hygiene may decline; this is
often a symptom of depression. If your father’s physician
says he has capacity, there may not be anything you can
do at this time. However, if you can get your father to agree
to see a psychiatrist, you can ask for a complete mental
assessment. Your father may refuse to see a psychiatrist or
refuse to cooperate.
If his behavior and mental condition continue to decline and
he will not help himself or accept help, or if you continue to
be concerned about him, you can contact Adult Protective
Services at 1-800-252-5400. They will investigate the
situation. If they determine he is neglecting himself, appears
to lack capacity or there are other issues, they will work to
find a solution. Another option is filing an application for
guardianship (temporary or permanent) and asking the court
to order a capacity assessment.
Situation 4:
There is a resident in our nursing facility who does not have
any family members to make medical decisions for her. Is a
guardian needed to make those decisions?
Answer: A guardian may not be needed, depending on the
type of decisions needed and the people available to make
those decisions. As long as a person has capacity, people
make their own medical decisions. If they have capacity, they
can designate an agent to make their medical decisions. The
nursing facility may accept their decisions or sometimes may
assume consent if the resident does not object. It takes a
court to say a person lacks capacity.
The attending physician, usually with the assistance of a
nursing facility social worker, makes a good-faith effort to
contact a surrogate decision-maker when a nursing facility

resident is comatose, incapacitated, unable to communicate,
there are no known family members, or the family members
are no longer involved with the individual. The Texas Health
and Safety Code, Chapter 313, Consent to Medical Treatment
Act, lists those family members and other persons, including
a clergy member, who can act as surrogate decision-makers.
If the situation calls for an end-of-life decision, Chapter
166.088(F) of the Texas Health and Safety Code establishes
criteria for two doctors to make the decisions. If you believe
a guardian is needed for regular or ongoing decisions, you
or another interested person may apply for guardianship or
send a letter to a court with probate authority and ask for
the appointment of a guardian.
People with intellectual disabilities
Situation 1:
My parents are older and have been caring for my disabled
brother. They are concerned about what will happen to him
in the future. Do I need to establish a guardianship to provide
care for him?
Answer: Not necessarily. People with disabilities do
not automatically need a guardian. Before seeking a
guardianship, answer the following questions:
• Can your brother communicate his desires and wishes?
• Are the decisions he makes in his best interest?
• Is there adequate support available from family, friends
and the community?
• Is he being served by government programs?
• What problems will a guardianship resolve?
• Are there money or government benefits? Is he capable
of managing them and, if not, are there alternatives to
manage them for him?
• Are there other viable alternatives to guardianship?
You may want to discuss the options with an attorney. When
all other options have been ruled out, you may consider either
a limited or full guardianship. Remember, many people with
disabilities lead full lives and live independently. Often they
are able to make their own decisions — both good and bad.
Situation 2:
My child has severe disabilities. I have always been his
caregiver and have cared for him at home. He turned 18
last February. I am being told I have no legal rights to make
medical decisions for him or consent to services on his
behalf. He is not able to understand what is needed, why it is
needed or what the consequences are if he doesn’t receive
services or medical treatment. He does not communicate
in any way and does not have the capacity to make his own
decisions. What do I need to do?
Answer: Explore all resources available to you. If you
rule out all other possible alternatives and you believe a
guardianship is appropriate, contact an attorney who can
help you file an application for guardianship.
Situation 3:
My sister is a resident of an intermediate care facility for
individuals with ID (ICF/IID). Our parents recently passed
away. I have been asked to become her guardian. Is this
necessary?
Answer: A surrogate decision-maker may be all that is
necessary. A surrogate decision-maker may make medical
decisions for residents of ICF/IIDs. Essentially, if a person
does not have a parent or a guardian and lacks the capacity
to make major medical or dental decisions for themselves, an
adult surrogate decision-maker may consent on the person’s
behalf. As an adult sibling, you are eligible to become the
surrogate decision-maker if you meet the legal requirements.
More information about surrogate decision-makers can be
found in Section 597.041 of the Texas Health and Safety
Code (see Tanisha’s Story, page 27).

Situation 4:
My sister, Betty, has moderate developmental disabilities and
lives at a state supported living center. She is moving to a
home in the community. Does she need a guardian?
Answer: Many adults with developmental disabilities are
capable of making their own decisions, including asking for
assistance in decision-making. If she has sufficient decision-
making capacity, your sister may not need a guardian.
Determine first if she has sufficient capacity to make her own
decisions or to ask someone else to assist her. If she does,
she can give someone else — perhaps you or another sibling
— power of attorney authorizing them to make decisions for
her. If she does not have sufficient capacity, then you may
want to discuss guardianship with an attorney.
Situation 5:
My son Jimmy is turning 18. He has moderate development
disabilities and problems communicating his wishes to
others. However, I can understand him perfectly. I know what
he wants for his future. Does he need a guardian?
Answer: People with mild to moderate developmental
disabilities often are able to make their own decisions and
choices, but for a multitude of reasons may not be able to
communicate their desires or accomplish what is required
without assistance. If someone will act as their supported
decision-maker, this may prevent the need for a guardian
altogether or may delay it indefinitely. A supported decision-
making agreement can be canceled by either party at any time.
ADDITIONAL RESOURCES
Following are more resources for information about

guardianship. This list is not exhaustive but is provided
as a starting point for learning more about the process of
guardianship. Information about guardianship is constantly
being updated and an internet search may provide
additional resources.
The Judicial Branch Certification Commission certifies and

regulates certified guardians in Texas. It is a division of the
Office of Court Administration under the Supreme Court. The
commission has published standards of practice and rules for
certified guardians. The commission maintains an on-line list
of certified and provisionally certified guardians.
Judicial Branch Certification Commission

Office of Court Administration
Tom C. Clark Building
P.O. Box 12066
Austin, TX 78711-2066
512-475-4368
www.txcourts.gov/jbcc/
The State Bar of Texas maintains a publication titled

Protecting the Incapacitated: A Guide to Guardianship in Texas
from Application to Oath. Go to www.texasbar.com and search
for “guardianship.” The website also has legal services and
other resources for people with low income.

The Texas Guardianship Association maintains guardianship
information on its website.
Texas Guardianship Association

P.O. Box 24037
Waco, TX 76702-4037
Phone: 888-399-9115 (toll free)
Email: [email protected]
www.texasguardianship.org
The National Guardianship Association maintains a website

dedicated to guardianship in the United States. The Center
for Guardianship Certification administers testing for
national guardian registration. It also administers the Texas
certification exam under a contract with the Texas Office of
Court Administration. The association’s website has a list of
nationally registered guardians. The website contains other
links to educational materials, reports on guardianship and
lists of certified guardians.
National Guardianship Association

174 Crestview Drive
Bellefonte, PA 16823
Phone: 1-877-326-5992
Fax: 1-814-355-2452
www.guardianship.org
Center for Guardianship Certification

P.O. Box 5704
Harrisburg, PA 17110
Phone: 1-717-238-4689
Fax: 1-717-238-9985
www.guardianshipcert.org/
Other resources
The 28 Texas area agencies on aging (AAAs) have benefits

counselors to help people age 60 and older and their
caregivers locate programs and resources. They can prepare
powers of attorney in some cases. To find an AAA near you,
visit hhs.texas.gov and search for “AAA directory.”
Disability Rights Texas provides information about

guardianship for people with disabilities. The organization’s
website, www.advocacyinc.org/handoutCommServ.cfm
contains guardianship-specific information.
The Arc of Texas is the oldest and largest non-profit volunteer

organization in the state committed to creating opportunities
for people with intellectual and developmental disabilities
to be included in their communities and to make the choices
which affect their lives.
The Arc of Texas

8001 Center Park Drive, Suite 100
Austin, TX 78754
Phone: 512-454-6694
www.thearcoftexas.org
Legal services: Several organizations provide lower-cost or

free legal services to those who have a significant economic
need or who are indigent. Some law schools have legal clinics
using law students supervised by a lawyer to assist persons
with low income. Organizations that may maintain a list of
attorneys who specialize in probate law are included on the
list. This list is not all-inclusive but is provided as a resource:

• State Bar of Texas
• Legal Aid Society or Hotline (see TLSC below)
• Local Bar Association
• Lone Star Legal Aid
• Legal Aid of Northwest Texas
• Texas Rio Grande Legal Aid
• Texas Legal Services Center
The Texas Legal Services Center (TLSC) operates a legal

hotline offering self-help legal advice to Texas residents 60
and older or who receive Medicare. TLSC also has programs
to help people with low income or who have been victims
of violent crimes gain access to health care. They also help
people who have suffered abuse or neglect in residential
care facilities, victims of identity theft and people who have
problems with pensions. TLSC also refers callers to attorneys
who may work for reduced fees.
Texas Legal Services Center

2101 S IH 35
Frontage Rd, Austin, TX 78701
Phone: 512-477-6000
www.tlsc.org
Lawyer Referral Service

Statewide: 800-252-9690
Austin/Travis County: 512-472-8303
Legal resources
Guardianship is a legal process defined in the Texas Estates

Code. The estates code reflects the many laws passed by the
Texas Legislature to protect adults and minors. The Health and
Safety Code contains the laws and forms regarding advance
directives, powers of attorney for medical care, written
directives and patients’ rights. The Government Code and
Human Resources Code contain specific laws applicable to
state agencies, including HHSC.
You can review the statutes online at www.statutes.legis.state.

tx.us or at the Texas State Library and Archives Commission.
Resources available range from traditional print material to
databases and full public access to the Internet.
Lorenzo de Zavala State Archives and Library

1201 Brazos
PO Box 12927
Austin, TX 78711-2927
Phone: 512-463-5455
[email protected]

GLOSSARY
Annual account
A report made to a court by a guardian of the estate covering
a specific period related to activity pertinent to the estate
within the designated period.
Annual report
A report made yearly to a court by a guardian of the person
covering a specified reporting period related to the condition
of the ward within the designated period.
Assisted living program

A 24-hour living arrangement providing services, including
personal care, home management, escort, social and
recreational activities, 24-hour supervision, supervision of,
assistance with, and direct administration of medications, and
the provision or arrangement of transportation.
Attorney ad litem
A court-appointed lawyer representing the proposed ward
during guardianship proceedings. The attorney ad litem
advocates for the wishes and desires of the proposed ward.
Bond
An insurance policy required by a court in an amount set by a
judge to cover the assets of the estate.
Capacity
Legal qualification, competency, power or fitness. Also, the
ability to understand the nature of the effects of one’s acts.
Certificate of medical examination (CME)

A document prepared by a physician licensed to practice in
Texas who examines a person and assesses his or her mental
capacity and capabilities.
Conservator
A legally appointed protector; preserver of a minor.
Decisional capacity
The ability to understand and appreciate the nature and
consequences of decisions and to reach and communicate an
informed decision in the matter.
Determination of intellectual disability (DID)

An assessment made by a physician or psychologist licensed
in the state of Texas based on the measure of a person’s
intellectual functioning, a determination of the person’s
adaptive behavior and level, and evidence of origination
during the person’s developmental period.
Estate
Both real and personal, tangible and intangible, and includes
anything subject to ownership.
Estates Code
The law containing the general provisions of guardianship.
Family guardian
Someone appointed for a person to whom he or she is
related by blood or marriage. When a family member who
has no conflict with the proposed ward is willing and able
to serve as guardian, the court prefers to appoint a family
member as guardian.
Guardian
Someone appointed by a probate court to protect the
property and/or person of one who does not have the capacity
to protect his or her own interests.
Guardian ad litem
A disinterested person appointed by the court on behalf of the
ward to represent a proposed ward or a ward’s best interest.
Guardian of the estate

A guardian who possesses any or all powers and rights with
regard to the property of a ward.

Guardian of the person
A guardian who is responsible for and who advocates for the
health, well-being and personal needs of a ward.
Guardian with full authority (full guardianship)

Someone appointed by the court to exercise all legal rights
and powers of the ward after the court has found the ward
lacks the capacity to perform all of the tasks necessary to
care for his or her person or property. It is the opposite of a
limited guardian.
Incapacitated person
An adult who, because of physical or mental conditions, is
substantially unable to feed, clothe or shelter himself/herself,
to care for his/her physical health, or to manage his/her
financial affairs.
Less restrictive alternative

An alternative meant to preserve a person’s autonomy or
independence.
Letters of guardianship
A certificate issued by the clerk of court to a guardian after
appointment and qualification by the guardian that states
facts of appointment, qualification, and the date the letters of
guardianship expire.
Limited guardian
A guardian appointed by the court to exercise the legal rights
and powers specifically designated by a court order entered
after the court has found the ward lacks capacity to perform
some, but not all, of the tasks necessary to care for his or her
person or property.
Oath
A sworn written statement made by the guardian in which he
or she swears to fulfill his or her obligation.
Power of attorney
A document appointing someone to act as agent for
another person. The agent may be authorized to make
medical or financial decisions, depending on the document.
Proposed ward
A person alleged to be incapacitated in a guardianship
proceeding.
Supported decision-making agreement

A written agreement between a person with a disability and
another who commits to providing support to the person in
seeing the individual’s wishes are carried out.
Supported decision-maker
A person who has entered into a written agreement with
an individual with disabilities to support them in their life’s
decisions.
Surrogate decision-maker
A person with decision-making capacity who has
authority to consent to medical treatment on behalf of an
incapacitated patient.
Ward
An incapacitated person who has been placed in the care,
custody and supervision of a guardian.

APPENDIX
Texas Estates Code
Title 3. Guardianship And Related Procedures
Subtitle E. Administration Of Guardianship
Chapter 1151. Rights, Powers, And Duties Under
Guardianship
Subchapter A. Rights, Powers, And Duties In General
Subchapter H. Rights Of Wards

Sec. 1151.351. BILL OF RIGHTS FOR WARDS.
(a) A ward has all the rights, benefits, responsibilities, and

privileges granted by the constitution and laws of this
state and the United States, except where specifically
limited by a court-ordered guardianship or where
otherwise lawfully restricted.
(b) Unless limited by a court or otherwise restricted by law, a

ward is authorized to the following:
1. to have a copy of the guardianship order and letters

of guardianship and contact information for the
probate court that issued the order and letters;
2. to have a guardianship that encourages the

development or maintenance of maximum self-
reliance and independence in the ward with the
eventual goal, if possible, of self-sufficiency;
3. to be treated with respect, consideration, and

recognition of the ward’s dignity and individuality;
4. to reside and receive support services in the most

integrated setting, including home-based or other
community-based settings, as required by Title II
of the Americans with Disabilities Act (42 U.S.C.
Section 12131 et seq.);
5. to consideration of the ward’s current and
previously stated personal preferences, desires,
medical and psychiatric treatment preferences,
religious beliefs, living arrangements, and other
preferences and opinions;
6. to financial self-determination for all public benefits

after essential living expenses and health needs
are met and to have access to a monthly personal
allowance;
7. to receive timely and appropriate health care and

medical treatment that does not violate the ward’s
rights granted by the constitution and laws of this
state and the United States;
8. to exercise full control of all aspects of life not

specifically granted by the court to the guardian;
9. to control the ward’s personal environment based

on the ward’s preferences;
10. to complain or raise concerns regarding the

guardian or guardianship to the court, including
living arrangements, retaliation by the guardian,
conflicts of interest between the guardian and
service providers, or a violation of any rights under
this section;
11. to receive notice in the ward’s native language, or

preferred mode of communication, and in a manner
accessible to the ward, of a court proceeding to
continue, modify, or terminate the guardianship
and the opportunity to appear before the court
to express the ward’s preferences and concerns
regarding whether the guardianship should be
continued, modified, or terminated;
12. to have a court investigator, guardian ad litem,

or attorney ad litem appointed by the court to

investigate a complaint received by the court from
the ward or any person about the guardianship;
13. to participate in social, religious, and recreational

activities, training, employment, education,
habilitation, and rehabilitation of the ward’s choice
in the most integrated setting;
14. to self-determination in the substantial

maintenance, disposition, and management of
real and personal property after essential living
expenses and health needs are met, including
the right to receive notice and object about
the substantial maintenance, disposition, or
management of clothing, furniture, vehicles, and
other personal effects;
15. to personal privacy and confidentiality in personal

matters, subject to state and federal law;
16. to unimpeded, private, and uncensored

communication and visitation with persons of
the ward’s choice, except that if the guardian
determines that certain communication or visitation
causes substantial harm to the ward:
* the guardian may limit, supervise, or restrict

communication or visitation, but only to the
extent necessary to protect the ward from
substantial harm; and
* the ward may request a hearing to remove any

restrictions on communication or visitation
imposed by the guardian under Paragraph (A);
17. to petition the court and retain counsel of the

ward’s choice who holds a certificate required
by Subchapter E, Chapter 1054, to represent the
ward’s interest for capacity restoration, modification
of the guardianship, the appointment of a different
guardian, or for other appropriate relief under this
subchapter, including a transition to a supported
decision-making agreement, except as limited by
Section 1054.006;
18. to vote in a public election, marry, and retain a

license to operate a motor vehicle, unless restricted
by the court;
19. to personal visits from the guardian or the

guardian’s designee at least once every three
months, but more often, if necessary, unless the
court orders otherwise;
20. to be informed of the name, address, phone

number, and purpose of Disability Rights Texas, an
organization whose mission is to protect the rights
of, and advocate for, persons with disabilities, and
to communicate and meet with representatives of
that organization;
21. to be informed of the name, address, phone number,

and purpose of an independent living center,
an area agency on aging, an aging and disability
resource center, and the local mental health and
intellectual and developmental disability center,
and to communicate and meet with representatives
from these agencies and organizations;
22. to be informed of the name, address, phone number,

and purpose of the Judicial Branch Certification
Commission and the procedure for filing a
complaint against a certified guardian;
23. to contact the Department of Family and Protective

Services to report abuse, neglect, exploitation,
or violation of personal rights without fear of
punishment, interference, coercion, or retaliation; and

24. to have the guardian, on appointment and on
annual renewal of the guardianship, explain
the rights delineated in this subsection in the
ward’s native language, or preferred mode of
communication, and in a manner accessible to
the ward.
(c) This section does not supersede or abrogate other

remedies existing in law.
Added by Acts 2015, 84th Leg., R.S., Ch. 1225 (S.B. 1882), Sec.
1, eff. June 19, 2015.
NOTES
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Guardianship
Services Program
Health, Developmental and
Independence Services
The Texas Health and Human Services Commission (HHSC) does

not discriminate on the basis of race, color, national origin, sex, age
Banner logo - mostly for web use Vertical logo - Flushed and centered versions
or disability in employment or the provision of services. HHSC is an

equal opportunity/affirmative action employer. HHSC welcomes
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40 • 96 • 22
suggestions for changes or additions to this material.

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Adult Guardianship Texas

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A Texas Guide to Adult Guardianship

With this guide, gain a better understanding of the ins and

This guide will help answer these questions:

• What can guardianship do and how will it help?

• What are the limitations of guardianship?

• What are the alternatives to guardianship?

• Who can be a guardian?

A Texas Guide to Adult Guardianship iii

ABOUT THIS GUIDE................................................................III

ESSENTIAL POINTS ABOUT TEXAS GUARDIANSHIPS................6

TEXAS BILL OF RIGHTS..........................................................13

DECISION-MAKING TIME ......................................................14

BE PREPARED – GUARDIANSHIP IS NOT AN EASY ANSWER....16

A Texas Guide to Adult Guardianship v

CHANGING OR ENDING GUARDIANSHIPS..............................27

HHSC GUARDIANSHIP SERVICES PROGRAM..........................29

SITUATIONS, QUESTIONS AND ANSWERS.............................30

One way of doing this is the establishment of a guardianship.

This guide examines the responsibilities, tasks and limits of a

Since guardianship affects a person’s rights, it is important

Some people need a guardian for their entire adult life

A Texas Guide to Adult Guardianship 1

Guardian and ward are legal terms

Guardians have legal responsibilities and are required to

• The court may disqualify any person or program from

• Certain criminal convictions are grounds for disqualifying

• Owing money to or otherwise being indebted to the

The chart below lists some of the benefits and disadvantages

Guardians support their Wards can lose many or

Guardians advocate for Family members may no

Guardianship is a legal Establishing a guardianship

A Texas Guide to Adult Guardianship 3

A proposed ward must be The proposed ward

Terminating or modifying Once a guardian is

A Texas Guide to Adult Guardianship 5

Responsibilities of a guardian or guardianship

• Must meet the legal responsibilities established by the

• Paying the ward’s bills.

• Making decisions about, and maintaining, the ward’s

• Ensuring the ward’s medical and living needs are met to

• Is responsible for filing annual reports or accountings with

• Is required to ask for the court’s permission and approval

Limitations of a guardian or guardianship

• Cannot prevent a ward from making bad decisions

• Is not responsible for bad decisions and choices the ward

• Cannot use force to make a ward take medication.

• Does not personally supervise the ward around the clock.

• Cannot place a ward in a mental health facility.

Is guardianship the best choice?

Because having a guardian takes away a person’s rights,

• Is a less restrictive alternative available? Has another

• What alternative resources are available to support a less

• Is the person in question unable to make his or her own

• Is this person nonverbal, unable to communicate with

• Is a surrogate decision-maker or agent under a power of

A Texas Guide to Adult Guardianship 7

Possible alternatives to guardianship include:

• Finding someone who will act as a supported decision-

• Finding someone who will help pay bills and manage