Texas Guardianship Planning Guide

Who takes care of your kids if you cannot? Who manages your money and medical decisions if you lose the ability to decide for yourself? In Texas, the Estates Code (Title 3, Chapters 1001 through 1355) governs the guardianship process. And Texas offers one of the strongest alternatives to guardianship in the country: supported decision-making.

This guide covers guardianship for minors, guardianship for adults, Texas-specific alternatives, and the steps you should take now to protect your family.

Why Guardianship Planning Matters

If you die without naming a guardian for your minor children, a Texas court picks one for you. The judge follows statutory priorities and considers the child's best interest, but the decision happens without your input. That process involves attorney fees, court hearings, and months of uncertainty for your family.

For adults, the consequences are even more serious. A guardianship proceeding removes legal rights from the proposed ward. Texas courts take this seriously and require clear and convincing evidence of incapacity before appointing a guardian. But without planning documents in place, guardianship may be the only option.

Planning ahead costs a fraction of what a contested guardianship proceeding costs. And it gives you control.

Guardianship for Minor Children

How Texas Decides Who Raises Your Kids

When both parents are deceased or unable to care for their children, Texas law follows a priority system. The court considers the child's best interest first, but the order of preference matters:

If the child is 12 or older, the court considers the child's own preference in who should serve as guardian.

Naming a Guardian in Your Will

Texas Estates Code 1104.053 allows parents to name a guardian for their minor children in their will. This is the most common approach.

Your will should include:

• A primary guardian for each child
• At least one alternate guardian
• Whether the same person serves as guardian of the person (daily care) and guardian of the estate (financial management), or different people for each role

Both parents should name the same person. If parents name different guardians, the court resolves the conflict based on the child's best interest.

Keep in mind: a will must go through probate before the guardian nomination takes effect. There is a gap between your death and the formal appointment.

Declaration Before Need

Texas offers a separate planning document called a Declaration Before Need (Estates Code 1104.202). This lets you designate who should serve as your guardian, or your child's guardian, before the need arises.

Requirements:

• Must be in writing
• Signed by you
• Signed by two witnesses
• Notarized
• Filed with the county clerk in the county where you reside

The court gives priority to the person named in a Declaration Before Need, unless appointing that person would not be in the best interest of the child or proposed ward.

The Declaration Before Need is separate from your will. Even if you name a guardian in your will, filing this declaration adds an extra layer of protection.

Background Checks

Texas requires criminal history background checks for all proposed guardians (Estates Code 1104.002). The court reviews the results before making an appointment. A criminal record does not automatically disqualify someone, but the court weighs the nature and recency of any offenses.

Guardianship for Adults

When Adult Guardianship Becomes Necessary

If an adult can no longer manage their personal or financial affairs and has no planning documents (power of attorney, healthcare directive, trust), someone must petition the court for guardianship. This is a last resort under Texas law.

Common situations:

• A parent with advanced Alzheimer's disease
• An adult child with a severe intellectual disability
• A spouse after a serious accident or stroke
• An elderly family member being financially exploited

The Court Process

Texas guardianship proceedings require multiple steps:

1. File an application with the county court or statutory probate court
2. Serve citation on the proposed ward and interested parties
3. Court-appointed attorney represents the proposed ward (mandatory)
4. Court investigator interviews the proposed ward, applicant, and other relevant people
5. Hearing where the applicant must prove incapacity by clear and convincing evidence
6. Court order specifying the type and scope of guardianship
7. Bond required for guardians of the estate
8. Ongoing reporting including annual accounts and reports

Standard of Proof

Texas sets a high bar: the applicant must prove incapacity by "clear and convincing evidence" (Estates Code 1101.101). This is a higher standard than the "preponderance of the evidence" used in most civil cases. The court must find that the proposed ward lacks the capacity to manage their own affairs and that no less restrictive alternative will work.

Types of Adult Guardianship

Texas law requires courts to use the least restrictive form of guardianship and to consider alternatives before appointing any guardian (Estates Code 1101.001).

Guardian Duties

Once appointed, a Texas guardian must:

• Post bond (for guardians of the estate)
• File an inventory of the ward's assets within 30 days
• File annual accounts showing all income, expenses, and asset changes
• File annual reports on the ward's well-being (for guardians of the person)
• Get court approval for major decisions (selling property, changing residence)
• Act in the ward's best interest at all times

Supported Decision-Making: Texas Leads the Way

A National Model

Texas was one of the first states to enact a supported decision-making (SDM) law in 2015 (Estates Code Ch. 1357). The Texas approach has become a model for other states.

How SDM Works

A supported decision-making agreement is a voluntary agreement between an adult with a disability and one or more supporters. The adult keeps full legal capacity. The supporter helps the adult make decisions but does not make decisions for them.

What supporters can help with:

• Healthcare decisions
• Financial decisions
• Daily living choices
• Accessing services and benefits

What makes SDM different from guardianship:

Third-Party Acceptance

Texas law requires third parties (banks, doctors, government agencies) to accept supported decision-making agreements (Estates Code 1357.056). A hospital cannot refuse to let a supporter help an adult understand their treatment options, and a bank cannot refuse to let a supporter assist with financial transactions.

Who Benefits from SDM

SDM works well for adults with:

• Intellectual or developmental disabilities
• Autism spectrum conditions
• Traumatic brain injuries
• Early-stage cognitive decline
• Mental health conditions that affect decision-making at times

SDM does not work for everyone. If a person truly cannot participate in decisions even with support, guardianship may still be necessary.

Alternatives to Full Guardianship

Texas courts must consider alternatives before appointing a guardian. Here are the options:

The bottom line: set up your planning documents while you have capacity. A power of attorney and medical power of attorney together can prevent the need for guardianship in many cases.

How to Plan Ahead

Step 1: Name Guardians for Your Children

Name a guardian in your will. Talk to that person first. Make sure they understand the responsibility and are willing to serve.

Step 2: File a Declaration Before Need

Complete and file a Declaration Before Need under Estates Code 1104.202. This covers both your children (if applicable) and yourself. Have it notarized and filed with your county clerk.

Step 3: Set Up Powers of Attorney

A statutory durable power of attorney handles financial decisions. A medical power of attorney handles healthcare decisions. Together, they cover the two main areas where guardianship would otherwise be needed.

Step 4: Consider an SDM Agreement

If you have an adult family member with a disability, explore a supported decision-making agreement before guardianship. The Texas Disability Rights organization and local disability advocacy groups can help you understand whether SDM is the right fit.

Step 5: Keep Documents Accessible

Store your Declaration Before Need, powers of attorney, will, and any SDM agreements where your family can find them. Give copies to your named agents, guardians, and attorney.

Step 6: Review Regularly

Update your documents after major life changes. At minimum, review everything every three to five years.

Common Mistakes

Not naming a guardian in your will. Without a nomination, the court decides. Your family may end up in a contested hearing where relatives fight over who should raise your children.

Skipping the Declaration Before Need. This simple document gives your choice legal weight in court. Filing it with the county clerk creates a public record that is easy to locate.

Going straight to guardianship for an adult with a disability. Texas law requires courts to consider less restrictive alternatives first. Explore SDM, powers of attorney, and management trusts before pursuing guardianship.

Not involving the proposed ward. Texas law requires that the proposed ward be served with citation, have an attorney, and be given the opportunity to attend the hearing. Skipping these steps invalidates the proceeding.

Choosing a guardian without considering finances. A guardian of the estate must post a bond and file annual accounts. If you want someone to raise your children but a different person to manage their inheritance, you can split the roles.

Forgetting to update. Divorce, remarriage, relocation, or the death of a named guardian all require updates to your guardianship documents.

Costs and Timeline

Timeline:

• Emergency/temporary guardianship: days to weeks
• Standard guardianship proceeding: 2 to 6 months
• Contested guardianship: 6 to 12+ months
• SDM agreement: can be completed in days

Planning ahead with a will, Declaration Before Need, and powers of attorney costs a fraction of what a guardianship proceeding costs. And it gives you control over who serves.

Next Steps

If you have minor children, name a guardian in your will and file a Declaration Before Need with your county clerk. Set up a statutory durable power of attorney and medical power of attorney to protect yourself.

If you have an adult family member who needs support, look into supported decision-making before pursuing guardianship. Texas was a pioneer in this area, and the SDM framework preserves the person's rights while still providing meaningful help.

For a full overview of Texas estate planning, see our probate guide and estate planning resources.

Official Sources

• Texas Estates Code Chapter 1101 (Guardianship proceedings)
• Texas Estates Code Chapter 1104 (Guardian designation and disqualification)
• Texas Estates Code Chapter 1357 (Supported Decision-Making Agreement Act)