Who Can Serve as a Guardian in Texas?

Choosing who can serve as a guardian in Texas is one of the most important decisions you can make when caring for a loved one who can no longer manage their own affairs. This decision impacts not only the individual needing care but also your entire family. Guardianship is about trust, responsibility, and making decisions that prioritize your loved one’s rights and well-being. 

At The Law Office of Whitney L. Thompson in Houston, we know how personal and emotional this process can be. You might feel unsure about who qualifies, who doesn’t, or how to approach the court to make the right choice. With guidance tailored to your family’s situation, we help you make informed decisions that protect your loved one’s future. Whether you’re preparing to serve as a guardian yourself or evaluating other options, having the right legal support makes all the difference.

Your loved one deserves care and representation that keeps their best interests at heart. Let our top-rated Houston guardianship attorney help you take that step forward with confidence. Contact us today at (281) 214-0173 to begin discussing how we can assist your family with this important decision.

What Is a Legal Guardian in Texas?

When it comes to guardianship, Texas law provides a framework to protect individuals who cannot make decisions for themselves. A guardian is someone appointed by the court to manage the personal or financial affairs of another person, often referred to as the “ward.” This arrangement can involve the guardian making decisions about the health, living arrangements, or finances of the ward.

The Texas Estates Code governs guardianship rules and procedures. Under the Code, guardianships are only established when the court determines that a person is legally incapacitated, meaning they cannot provide for their own physical health or financial well-being.

For example, if an elderly adult is diagnosed with dementia and can no longer make sound decisions, the court may appoint a guardian to manage their affairs. 

Guardianships aren’t approved without careful consideration. Becoming a guardian is a serious responsibility that requires court approval at every step.

How Guardianship Protects Vulnerable Individuals

Guardianship exists to safeguard individuals who are unable to fully care for themselves. Without someone to act in their best interests, vulnerable people might face serious risks like financial exploitation, neglect, or abuse.

The court’s primary goal is to protect the well-being of the ward while balancing their independence. Texas law emphasizes that guardianship should only be used when absolutely necessary and in the least restrictive way possible. For instance, if someone can handle certain tasks but needs help with others, the court might limit the guardian’s authority to specific areas, such as managing finances.

Common Types of Guardianships in Texas

There are different types of guardianships in Texas, tailored to meet the needs of the individual and their circumstances. Each type comes with specific responsibilities and limitations:

• Guardian of the Person: This guardian makes decisions about the ward’s personal life, such as healthcare, education, and living arrangements. For example, deciding whether the ward should live at home or in an assisted living facility falls under this category.
• Guardian of the Estate: This type of guardian is responsible for managing the ward’s financial assets, paying bills, and handling property. It’s common when the ward has significant assets that require oversight.
• Full Guardianship: In cases where the ward is completely incapacitated, a guardian may be given full authority over both personal and financial decisions.
• Limited Guardianship: When a ward can manage some aspects of their life, the court may grant a guardian authority over specific areas only. For instance, a ward may retain the ability to make personal decisions while the guardian oversees financial matters.

Each type of guardianship reflects the court’s commitment to addressing the unique needs of the ward while avoiding unnecessary interference in their life. If you’re considering guardianship for a loved one, understanding these distinctions can help you determine the best path forward.

Type of Guardianship	Duties / Authority	Example or Description
Guardian of the Person	Makes personal decisions such as healthcare, education, and living arrangements	Decides where the ward lives and ensures daily care needs are met
Guardian of the Estate	Manages financial matters, property, and assets	Pays bills, oversees investments, and maintains property
Full Guardianship	Combines both personal and financial authority	Used when the ward is fully incapacitated and cannot manage any affairs
Limited Guardianship	Authority restricted to certain areas only	Guardian handles finances while the ward makes personal decisions

Who Needs a Guardian in Texas?

Texas law recognizes that some individuals may need someone to step in and provide legal support. Here are some situations wherein the court may approve a guardianship:

Individuals with Mental or Physical Disabilities

For individuals with mental or physical disabilities, guardianship can provide protection and support when they cannot manage their daily lives or make safe decisions.

• Adults with intellectual or developmental disabilities who lack the capacity to make decisions about their health, finances, or living arrangements may need a guardian.
• Mental health conditions, such as severe bipolar disorder or schizophrenia, can also lead to guardianship if the individual is unable to care for themselves or manage their estate.
• Physical disabilities alone do not automatically result in guardianship. However, if a condition significantly impairs someone’s ability to handle essential tasks, like paying bills or seeking medical care, a guardian might be necessary.

When considering guardianship for someone with disabilities, the court carefully evaluates their specific limitations. Texas law aims to protect their rights and independence as much as possible while providing the help they need.

Elderly Adults Facing Incapacity

Aging can bring challenges that make it harder for some individuals to make sound decisions or manage their affairs. Guardianship is often a solution for elderly adults who are struggling with physical or mental decline.

• Dementia, Alzheimer’s disease, or other cognitive impairments can leave older adults vulnerable to financial exploitation, neglect, or harm.
• Physical frailty or chronic illness may also limit someone’s ability to care for themselves, especially if they live alone or lack family support.

The court typically looks for less restrictive alternatives, such as a power of attorney, before granting guardianship. However, if no other options are available, appointing a guardian can provide the oversight needed to protect the individual’s well-being.

Minors Without Parental Care or Supervision

Guardianship is often essential for minors whose parents are unable to care for them. This might be temporary or long-term, depending on the situation.

• If a child’s parents pass away, a guardian may be appointed to manage their upbringing and financial matters.
• In cases where parents are deemed unfit due to issues like neglect, substance abuse, or incarceration, guardianship allows another responsible adult to step in and provide care.
• Some minors may need a guardian if their parents are deployed in the military or face other circumstances that prevent them from fulfilling their parental duties.

Guardianship for minors focuses on providing a stable, supportive environment while protecting their legal and financial interests. Texas courts prioritize the best interests of the child when determining who should serve as their guardian.

General Qualifications to Serve as a Guardian in Texas

Serving as a guardian in Texas is a serious responsibility, and the law lays out clear qualifications for who can take on this role. The court wants to make sure that the person appointed is capable of acting in the best interest of the individual who needs help. 

Legal Requirements for Guardianship Eligibility

Texas law has specific criteria for who can serve as a guardian. These legal requirements are in place to protect the rights and well-being of the person under guardianship.

• You must be an adult (18 years or older).
• You must be a resident of Texas unless the court approves an exception, such as for a close family member living out of state.
• You must not have been convicted of certain crimes, especially those involving dishonesty or harm to others.

The court will also review whether you have any legal conflicts that could interfere with your ability to act in the ward’s best interests. For example, if you have a financial interest that could conflict with your role as a guardian, the court may disqualify you.

Financial Responsibility

If you’re appointed as a guardian, especially of someone’s estate, you’ll likely be responsible for managing their finances. This includes tasks such as paying bills, maintaining property, and safeguarding assets. Because of this, financial responsibility plays a big role in the court’s decision.

• The court may ask for proof that you’re capable of handling financial matters, such as showing a history of managing your own finances responsibly.
• If you’re appointed to oversee a large estate, the court might require you to post a bond. A bond is a type of insurance that protects the ward’s assets in case of mismanagement.

The goal is to make sure that the person you’re caring for is financially protected and that their resources are used appropriately.

Moral Character and Capability: What the Court Considers

Your character and ability to fulfill the guardian’s duties are just as important as meeting the legal and financial requirements. The court will want to know that you can be trusted to act in the ward’s best interest.

• You should have a reputation for honesty and dependability. The court may look at your background and personal history to assess this.
• You must be physically and mentally capable of carrying out the responsibilities of a guardian. For instance, if the role requires making medical decisions, overseeing daily care, or managing complex finances, the court needs to know you’re up to the task.
• The court may also consider your relationship with the ward. Close relatives, like parents or adult children, are often preferred, but non-relatives can be appointed if they demonstrate the ability to act in the ward’s best interest.

Ultimately, the court’s priority is appointing someone who is qualified, trustworthy, and fully prepared to take on the responsibilities of guardianship. If you’re thinking about stepping into this role, it’s important to evaluate your own abilities and commitment to the individual’s care.

Who Cannot Serve as a Guardian in Texas?

Not everyone is eligible to serve as a guardian under Texas law. The court carefully evaluates potential guardians to protect the interests of the person needing care. Certain factors, such as past actions, conflicts of interest, or personal limitations, can disqualify someone from taking on this important role. Let’s look at the main reasons someone might be deemed ineligible to serve as a guardian.

Can I Have a Criminal Background and Serve as a Guardian?

Your criminal history can play a significant role in whether you can serve as a guardian in Texas. The law aims to protect vulnerable individuals by ensuring that only trustworthy and law-abiding people are appointed.

• If you’ve been convicted of a crime involving dishonesty, fraud, or moral turpitude, you’ll likely be disqualified. Crimes such as theft, embezzlement, or forgery fall into this category.
• A history of violence, abuse, or neglect is also a red flag. For example, someone with a domestic violence conviction would not be considered suitable to serve as a guardian.
• Certain felony convictions can automatically disqualify you unless you’ve been pardoned or can prove rehabilitation to the court.

The court’s primary focus is on the safety and well-being of the ward. Even if you’ve turned your life around, your past actions will be closely scrutinized to determine if guardianship is appropriate.

Conflicts of Interest That Prevent Guardianship

Conflicts of interest can arise when someone’s personal, financial, or legal interests interfere with their ability to act in the best interest of the ward. The court takes these conflicts seriously and may disqualify a potential guardian if any exist.

• If you stand to benefit financially from the ward’s estate beyond reasonable compensation for your guardianship duties, you may not be eligible.
• A business relationship with the ward that could compromise your decision-making may also disqualify you. For instance, if you’re a creditor of the ward or have financial dealings with them, the court might view this as a conflict.
• Additionally, family disputes over guardianship can sometimes lead the court to disqualify individuals who are too closely tied to contentious situations.

The goal is to appoint someone who can fully focus on the ward’s needs without being influenced by outside interests.

Ineligibility Due to Lack of Suitability or Availability

Even if you meet the legal and moral requirements, you could still be found ineligible if the court determines you’re not suitable or available to fulfill the role. Guardianship requires a significant amount of time, effort, and responsibility, and not everyone is in a position to take that on.

• If you’re unable to dedicate the time needed to care for the ward, the court may disqualify you. This could be due to work commitments, distance, or other personal obligations.
• Physical or mental limitations can also prevent someone from serving. For example, if you’re unable to manage the ward’s medical needs or financial matters, the court may seek another candidate.
• In some cases, the court may disqualify individuals who lack the skills or knowledge required for the role, especially if the ward’s estate is complex or involves significant financial management. For example, if the ward’s primary language is not English, the court may require a guardian who speaks their primary language.

The court always prioritizes the ward’s best interests, so they’ll appoint someone who is not only eligible but also fully capable of meeting the demands of guardianship. If you’re considering becoming a guardian, it’s important to honestly assess your ability to take on the role and meet the court’s expectations.

Can Family Members Be Automatically Granted Guardianship? 

Family members often play a central role in guardianship cases in Texas. When someone needs a guardian, the court typically looks to relatives first, as they are usually the most familiar with the individual’s needs and best interests. However, there are situations where non-family members might be considered, and family dynamics can sometimes complicate the process. 

How Texas Courts Prioritize Family Members as Guardians

In most cases, Texas courts give preference to family members when appointing a guardian. The reasoning is simple: family members are more likely to have a personal connection to the ward and a vested interest in their well-being.

• Parents are usually the first choice for minors or adult children with disabilities. For example, if a child’s parents are still living, they’re often appointed as guardians unless the court finds them unfit.
• For elderly adults, spouses are typically prioritized over other relatives. If the spouse is unavailable, adult children are often next in line.
• Close relatives, such as siblings, grandparents, or aunts and uncles, may also be considered if no immediate family members are able or willing to serve.

The court values the stability and familiarity that family members can provide. However, they’ll still evaluate each candidate’s qualifications to ensure they can meet the ward’s needs.

Circumstances When Non-Family Members Are Considered

While family members are generally preferred, there are times when the court may appoint a non-family member to serve as a guardian. This often happens when no qualified or willing relatives are available, or if the court determines that appointing a family member isn’t in the ward’s best interest.

• If family members have conflicts of interest or a history of neglect, the court may look to a trusted friend, neighbor, or professional guardian.
• In complicated cases, such as those involving large estates or legal disputes, the court may appoint an independent guardian to avoid potential bias or financial mismanagement.
• For minors, a close family friend or even a foster parent may step into the role if no relatives can take on the responsibility.

The court’s goal is always to find someone who can provide stability, care, and sound decision-making for the ward, even if that means looking outside the family.

Balancing Family Dynamics in Guardianship Decisions

Family dynamics can play a significant role in guardianship cases, and the court often has to investigate and consider the family’s relationships to make the best decision for the ward. Disagreements between relatives about who should serve as guardian are not uncommon, especially in cases involving elderly adults or valuable estates.

• If multiple family members want to serve as guardian, the court will evaluate each person’s qualifications, relationship to the ward, and ability to cooperate with others.
• When family disputes are particularly contentious, the court might bypass relatives altogether and appoint a neutral third party to avoid further complications.

Ultimately, the court’s decision is guided by what’s best for the ward, not necessarily what’s easiest for the family. If you’re involved in a guardianship case, it’s important to focus on the needs of your loved one and work collaboratively whenever possible.

Houston Guardianship Lawyer Whitney L. Thompson

Are Co-Guardians Allowed in Texas?

Yes, Texas law allows for the appointment of co-guardians in certain situations, but the law is very specific about who can be jointly appointed. A key principle of Texas guardianship law is the preference for a single guardian for either the person or the estate (Sec. 1104.001(a)). However, the law provides narrow, specific exceptions for joint appointments, which the court must find to be in the incapacitated person’s best interest.

How Co-Guardianship Works in Texas

In a co-guardianship arrangement, two people share the responsibilities of caring for the ward. Both guardians are equally accountable to the court and must work together to fulfill their duties.

Joint appointments of co-guardians are only permitted by the court if the proposed co-guardians fall into one of the following categories (Sec. 1104.001(b)):

• A husband and wife.
• Joint managing conservators (typically of a minor, or an adult who was previously the subject of a suit affecting the parent-child relationship).
• Co-guardians appointed under the laws of another jurisdiction.
• Both parents of an adult incapacitated person if the adult was never the subject of a suit affecting the parent-child relationship, or if they were joint managing conservators but no longer serve in that capacity.

If the court finds that two or more eligible persons (who may or may not be the statutory co-guardians listed above) are equally entitled to serve as guardian, Sec. 1104.102 establishes a clear order of preference:

1. The incapacitated person’s spouse.
2. The nearest of kin to the incapacitated person.
3. The best qualified eligible person, if the preferred parties refuse to serve, the two nearest of kin are related in the same degree, or no preferred party is eligible.

Alternative to Co-Guardianship: Dividing Duties

If two individuals do not meet the statutory criteria for co-guardianship (e.g., two siblings, two friends, or a family member and a non-spouse caregiver), the court may still allow two people to share the role through the common practice of appointing:

• One person as Guardian of the Person. This person is responsible for non-financial matters like medical decisions and living arrangements.
• A separate person as Guardian of the Estate. This person is responsible for managing the ward’s financial assets and property.

This “split guardianship” is permitted under Sec. 1104.001(a), provided the court determines that the arrangement is in the best interest of the incapacitated person.

Potential Challenges of Co-Guardianship

While a joint or split guardianship can be beneficial for managing extensive responsibilities, it also comes with challenges. Disagreements between co-guardians (or between the guardian of the person and the guardian of the estate) can delay critical decisions. The court expects appointed parties to work together for the ward’s benefit, and significant conflicts could lead to court intervention or the removal of one or both guardians.

Can a Non-Resident Serve as a Guardian in Texas?

Texas law does not outright prohibit non-residents from serving as guardians, but it does have some requirements to make sure the guardian can fulfill their duties.

• You must be a legally competent adult. This applies equally to residents and non-residents.
• Non-residents must appoint a registered agent in Texas. A registered agent is someone who lives in Texas and can accept legal notices on your behalf.
• The court will examine how your residency might impact your ability to carry out your responsibilities, such as traveling to Texas or managing local affairs.

The most important factor is whether your location would create obstacles to providing proper care or financial management for the ward.

Appointing Out-of-State Guardians

If you’re an out-of-state guardian, the court may impose additional requirements to protect the ward and ensure you remain accountable. These extra steps are designed to address the challenges of managing guardianship from a distance.

• You may be required to post a bond. This acts as a financial safeguard to protect the ward’s estate in case of mismanagement.
• The court might require you to file more frequent reports about the ward’s well-being or the management of their estate.
• If you’re managing an estate, you’ll need to stay on top of Texas laws regarding financial responsibilities, taxes, and asset management.

Being an out-of-state guardian can be more complicated, but it’s not impossible. With proper planning and attention to the court’s expectations, you can fulfill the role effectively.

Special Considerations for Non-Residents Managing Local Affairs

Living outside Texas can present practical challenges when it comes to guardianship, especially if you’re responsible for making frequent decisions about the ward’s care or property. The court considers these challenges before approving a non-resident guardian.

• If the ward requires hands-on care, such as regular medical appointments or oversight of daily living, the court may question whether you can handle these responsibilities from afar.
• For guardians of the estate, managing local property or financial accounts might require hiring professionals in Texas, such as attorneys or accountants, to assist you.
• Frequent travel to Texas may also be necessary to meet court requirements or check on the ward’s well-being.

In some cases, the court might prefer a local guardian or co-guardian who can handle day-to-day responsibilities more easily. That said, if you can demonstrate a clear plan to manage your duties and address potential challenges, you may still be approved.

If you’re a non-resident considering guardianship, it’s important to weigh these factors carefully. Texas courts are open to appointing out-of-state guardians, but they want to be sure that distance won’t interfere with your ability to provide the care and oversight your loved one needs.

Protecting Your Loved One’s Future Through the Right Guardianship

Deciding who can serve as a guardian in Texas is a deeply personal choice that affects your loved one’s care and your family’s peace of mind. The right guardian can provide stability, protection, and a voice for those who cannot advocate for themselves. Getting this decision right is essential to safeguarding their rights and best interests.

At The Law Office of Whitney L. Thompson, we understand how much this decision matters to you and your family. With compassionate guidance and a focus on your loved one’s needs, we’ll walk you through every step of the process, helping you make decisions that protect their future. 

Your family’s well-being is worth the effort. Contact The Law Office of Whitney L. Thompson today at (281) 214-0173 to discuss how we can support you in making the right choices for your loved one. Let’s work together to protect what matters most.