Picture a hypothetical family we’ll call the Garzas. Linda is 81 and lives on her own in Terrell. Her son Marcus lives in Frisco and checks in every Sunday. One week, Linda has a stroke, and when Marcus calls her bank to pay the hospital, the bank tells him politely that he has no authority over her account.
Being her son gives Marcus no legal power to sign for her. That gap calls for a careful review of Linda’s capacity, existing documents, and available alternatives (Texas favors the least restrictive option). Guardianship may be necessary if those options cannot adequately protect her. We’ll walk through how it works in Texas, where you file in adult guardianship in Dallas, Collin, and Kaufman County, and what your family can do before anyone needs a courtroom.
Adult Guardianship In Texas Starts With A Court Order
A guardianship is a court order that gives one person legal authority to make decisions for an adult the court finds cannot make them alone. The adult is called the ward, and the person appointed is the guardian.
Texas only allows this for an “incapacitated person,” which the law defines as an adult who, because of a physical or mental condition, is substantially unable to feed, clothe or shelter themselves, care for their own health, or manage their own money (Texas Estates Code §1002.017).
The bar is high on purpose. The judge has to find by clear and convincing evidence, meaning proof that leaves the judge firmly convinced, that your parent is incapacitated and that a guardianship is in their best interest (§1101.101).
Being an adult child does not automatically authorize you to manage a parent’s bank accounts. Medical decisions are different in certain cases since Texas law sometimes allows a spouse or another qualifying relative to consent to treatment without a medical power of attorney, subject to statutory requirements and limits.
What Signs Tell You A Parent May Need A Guardian?
Usually you’ll notice a pattern over weeks or months. Examples include a parent with advancing dementia who is missing bills or giving money away, a parent being financially exploited by someone outside the family, a parent who has had a stroke or serious medical event with no planning documents in place, or a parent refusing care in a way that creates serious danger.
The line the law draws is between a bad decision and an inability to decide. A parent who makes choices you disagree with is not incapacitated. A parent who can no longer understand the consequences of their choices, and is being hurt as a result, may be.
A Power Of Attorney Signed Early Can Keep You Out Of Guardianship Court
A durable power of attorney is a document where your parent names someone, called an agent, to handle their money and legal matters. The word “durable” is the important part. A durable financial power of attorney lets your parent authorize an agent to handle specified financial and legal matters. Depending on its terms, the agent’s authority may begin immediately and continue through incapacity, or begin only upon incapacity. The document must contain the required durability language and satisfy applicable signing and acknowledgment requirements. (§751.0021).
A medical power of attorney does the same job for health care. The agent can make health care decisions once your parent’s doctor certifies in writing that your parent is no longer competent to make them (Texas Health and Safety Code §166.152).
Your parent must have the legal capacity required to execute each document. If physical limitations prevent signing, Texas law permits another person to sign at your parent’s direction under specified conditions. If your parent lacks the capacity needed to execute a new power of attorney, an attorney can evaluate existing documents, other alternatives, and whether guardianship is necessary.
There is a third document worth knowing about. A declaration of guardian lets your parent name, in advance, who they want as guardian if one is ever needed, and the court must appoint that person unless they are disqualified or wouldn’t serve your parent’s best interest (§1104.202). It has its own signing rules, such as two witnesses or, in some cases, a notary (§1104.203). If you’re weighing these tools against a trust, the post power of attorney versus a living trust lays out what each one covers. Families in the Dallas area often put all three documents in place at once with our Dallas estate planning team.
How Does The Texas Guardianship Process Work, Step By Step?
If guardianship is necessary after evaluating available alternatives, the process goes as follows.
1. The application. Someone files a sworn application with the court naming the proposed ward, the proposed guardian, and whether the guardianship covers the person, the estate or both. It also has to say whether alternatives to guardianship were considered (§1101.001).
2. Notice. A sheriff or other officer personally serves your parent with the papers, so they know the case exists (§1051.103).
3. A lawyer for your parent. The court must appoint an attorney ad litem, an independent lawyer whose only job is to represent your parent’s interests (§1054.001).
4. A medical letter. The court needs a written letter or certificate, usually from a licensed physician, that describes your parent’s condition. Coordinate the examination and required certificate with your attorney early. The certificate must satisfy statutory timing and content requirements; outdated or incomplete medical evidence can delay the case.
5. The hearing and qualification. If the judge appoints a guardian, that person takes an oath (§1105.051) and generally has to post a bond, a kind of insurance that protects your parent’s money. Only narrow exceptions apply, such as a bank trust department serving as guardian (§1105.101).
When a parent is in immediate danger, the court can appoint a temporary guardian with limited powers (§1251.001). A temporary guardianship generally can’t last more than 60 days (§1251.151), so it buys time while the full case moves forward.
Registration, training, and background checks: Proposed family guardians generally must register with the Judicial Branch Certification Commission, complete required guardian training, and undergo a criminal-history check before appointment, subject to applicable exemptions.
Where You File Depends On The County Your Parent Lives In
A guardianship case is filed in the county where your parent lives or is located, or where most of their property is (§1023.001). These North Texas counties handle them each a little differently.
Dallas County. Dallas County has three statutory probate courts, Probate Court No. 1, No. 2, and No. 3, all on the 7th floor of the George Allen Courts Building at 600 Commerce Street in downtown Dallas. Our Dallas probate practice works in these courts.
Collin County (Frisco). Frisco sits partly in Collin County and partly in Denton County. Collin County has one dedicated court, the Collin County Probate Court, in the Russell A. Steindam Courts Building at 2100 Bloomdale Road in McKinney. If your parent lives in the Collin County part of Frisco, their case goes to McKinney. If they live on the Denton County side, it’s filed in Denton County.
Kaufman County (Terrell). Kaufman County does not have a separate probate court. Guardianship and probate cases are heard by the County Judge and County Court at Law No. 2, at the Kaufman County Justice Center, 1902 E. US Highway 175 in Kaufman. In the Garza example, because Linda lives in Terrell, Marcus would file in Kaufman even though he lives in Frisco.
A Guardian Of The Person And A Guardian Of The Estate Have Different Jobs
The court can appoint a guardian for your parent’s person, their estate, or both, and it helps to ask only for what your parent actually needs.
A guardian of the person handles daily life and care. That includes deciding where your parent lives, making sure they have food, clothing, shelter, and medical care, and consenting to most medical treatment (§1151.051). Once a year, this guardian files a sworn report with the court about your parent’s condition and care (§1163.101).
A guardian of the estate handles the money. That means managing your parent’s property, collecting what is owed to them, and handling lawsuits for or against them (§1151.101). This guardian files an annual accounting of money coming in and going out (§1163.001), and has to ask the court for an order before selling your parent’s real estate (§1158.251).
Texas Courts Look For Less Restrictive Options First
A judge cannot appoint a guardian until alternatives to guardianship, and supports and services that might avoid it, have been considered and found not to work (§1101.101). Supports and services means everyday help, formal or informal, that lets a person handle their own care, money or personal decisions (§1002.031).
One alternative is a supported decision-making agreement. Your parent chooses a trusted supporter who helps them understand their options and communicate their choices, without taking the decision away from them (§1357.051). Another is a representative payee, a person the Social Security Administration appoints to manage someone’s benefits (Social Security Administration). Both appear on the Texas list of alternatives a court looks at (§1002.0015).
Even when a guardianship is needed, the court can limit it. If your parent can still handle some tasks, the judge can appoint a guardian with limited powers and let your parent keep making the decisions they’re able to make (§1101.152).
What Do Families Ask Us Most About Guardianship?
Do I need a lawyer to become my parent’s guardian?
In practice, yes. Every lawyer who represents anyone in a Texas guardianship case must be certified as having completed a State Bar of Texas course in guardianship law (§1054.201), the court appoints a separate lawyer for your parent, and the application has specific sworn requirements.
How long does a guardianship take in Texas?
An uncontested case usually takes a few months from filing to the judge’s order. A contested case can take longer. In an emergency, a temporary guardianship can cover up to 60 days while the full case is pending (§1251.151).
Does a guardianship ever end?
Yes. A guardianship is closed when the ward passes away or when the court finds the parent has full capacity, or sufficient capacity with supports and services, to care for themselves and manage their property. (§1202.001). Your parent, or anyone interested in their welfare, can ask the court to restore some or all of their rights (§1202.051).
If you found this useful, you might also like our post on essential legal documents for incapacity planning.
Whether your parent lives in Dallas, Frisco, or Terrell, we can help you figure out whether guardianship is the right step or whether a few documents can still do the job.
Reach out through our Terrell estate planning page to set up a time to talk.
Tarleton Firm
