The call usually comes after something specific. A parent sent money to a stranger on the phone. A hospital will not release information. A bank froze an account. An adult child who has been managing informally for years suddenly discovers that informal management has no legal standing when an institution decides to require it.
Guardianship of a parent in Texas is the most powerful tool available for this situation, and for exactly that reason it is the last one courts want to use. Texas law requires the court to consider less restrictive alternatives before appointing a guardian, and in many families one of those alternatives is a better fit than the guardianship people came in asking for. Our guardianship attorneys in Conroe work through this analysis with families regularly. Here is how it actually works.
What Guardianship Is
Guardianship is a court proceeding under Title 3 of the Texas Estates Code in which a judge determines that an adult is incapacitated and appoints someone to make decisions for them. There are two types, and a person may need one or both.
Guardianship of the person covers decisions about residence, medical treatment, and daily care.
Guardianship of the estate covers management of property, income, and financial affairs.
Guardianships may be full or limited. Texas favors limited guardianships that remove only the specific rights the person cannot exercise, preserving everything else. A court that finds a parent can manage daily living but cannot handle finances should tailor the order accordingly.
The Alternatives Courts Must Consider First
Texas Estates Code requires an applicant to address whether less restrictive alternatives are feasible. This is not a formality. Judges in Montgomery County ask about it directly, and an application that does not address it invites delay.
Durable power of attorney. If your parent still has capacity to sign one, this is almost always the better path. It appoints an agent for financial matters without a court proceeding, without ongoing reporting, and without stripping anyone of legal rights. The window for signing one closes as capacity declines, which is why this conversation should happen early rather than at the point of crisis.
Medical power of attorney and advance directives. The healthcare equivalent, addressed on our page covering Texas advance directives.
Supported decision-making agreement. Texas recognizes these under Chapter 1357 of the Estates Code. The adult retains full legal authority and formally designates a supporter to help gather information, understand options, and communicate decisions. This works well for individuals with mild impairment who need assistance rather than substitution.
Management trust or existing trust. A properly drafted revocable trust with a successor trustee provision handles financial incapacity without any court involvement at all. Families who did estate planning years earlier frequently discover the mechanism was already in place.
Representative payee. For a parent whose income is primarily Social Security, a representative payee designation through the Social Security Administration addresses the practical problem without a guardianship.
Joint accounts and authorized signers. Limited, and they carry their own risks regarding ownership and creditor exposure, but sometimes sufficient.
In our experience, roughly half the families who arrive asking about guardianship leave with a different tool. The other half genuinely need it, usually because capacity has already declined past the point where a power of attorney can be signed.
The Guardianship Process Step by Step
- Physician’s certificate. A Certificate of Medical Examination completed by a licensed physician, generally within 120 days before the application is filed, describing the nature and degree of incapacity.
- Application. Filed in the county of the proposed ward’s residence, identifying the proposed ward, the applicant, the relief sought, and the alternatives considered.
- Attorney ad litem appointed. The court appoints an attorney to represent the proposed ward. This is mandatory. That attorney’s job is to advocate for the proposed ward’s expressed wishes, which sometimes means opposing the application.
- Court investigator or guardian ad litem. The court may direct an investigation into the circumstances and report findings.
- Citation and notice. The proposed ward must be personally served, and notice goes to close relatives as the Code specifies.
- Hearing. The applicant must prove incapacity by clear and convincing evidence, that guardianship is in the proposed ward’s best interest, and that the proposed guardian is eligible and suitable.
- Order, bond, and letters. If granted, the guardian qualifies by taking an oath and posting bond, then receives letters of guardianship establishing authority.
Expect three to six months for an uncontested guardianship, considerably longer if a family member objects. Emergency temporary guardianships are available where there is imminent danger to the person or their estate, but they are limited in duration and reserved for genuine emergencies.
What Being a Guardian Actually Requires
Families often underestimate the ongoing obligation. A guardian of the estate must file an inventory, appraisement, and list of claims, then file annual accountings with the court showing every dollar received and spent. A guardian of the person files an annual report on the ward’s condition and wellbeing.
A bond is generally required for guardians of the estate, and the premium is an annual expense. Court approval is required for many transactions, including selling real property or making significant expenditures.
Texas also requires guardians to complete a training course and to register with the Judicial Branch Certification Commission unless an exemption applies.
This is a fiduciary role with real personal liability. Guardians who commingle funds, fail to account, or use ward assets for their own benefit face removal, surcharge, and in serious cases criminal exposure.
When Family Members Disagree
Contested guardianships are among the more difficult matters in Texas courts, because the dispute is rarely really about capacity. It is about which sibling is trusted, what happened over the last decade, and who should control a house.
Several things help. Documenting the parent’s actual functioning with specifics rather than characterizations. Obtaining a thorough medical evaluation rather than a perfunctory one. Considering whether a neutral professional guardian or a corporate fiduciary would resolve the impasse. And recognizing that a contested guardianship consumes estate assets that were meant to care for the parent.
Where financial exploitation is suspected, whether by a family member or an outside party, that changes the posture significantly and may warrant emergency relief.
Montgomery County Practice
Guardianship and probate matters in Montgomery County are heard in the county courts at law, which maintain probate jurisdiction and have established local procedures for these cases. Walker County matters proceed through the constitutional county court in Huntsville.
Local practice details that affect timing include the availability of physicians willing to complete a Certificate of Medical Examination promptly, the attorney ad litem appointment schedule, and the court’s requirements for the annual accounting format. Working with counsel familiar with the specific court avoids the resubmission cycle that adds months to these cases.
Because Montgomery County has a substantial retiree population, particularly around Lake Conroe and in The Woodlands, guardianship volume here is meaningful and the courts are experienced with these matters.
The Better Path, When It Is Still Available
Everything above describes what happens when planning did not occur. The alternative is straightforward and inexpensive by comparison: a durable power of attorney, a medical power of attorney, a directive to physicians, a HIPAA authorization, and where appropriate a funded trust with a successor trustee.
That package, signed while a parent has capacity, prevents nearly every scenario that leads families into guardianship court. The obstacle is rarely cost. It is the conversation, and the conversation gets harder every year it is postponed.
Frequently Asked Questions
How much does guardianship cost in Texas?
Costs include attorney fees for the applicant, the court-appointed attorney ad litem’s fees, the physician’s certificate, filing fees, and bond premiums, with ongoing annual accounting costs after appointment. Uncontested matters are substantially less expensive than contested ones.
Can I get guardianship if my parent objects?
You can apply, but the proposed ward has a court-appointed attorney and the right to contest. You must prove incapacity by clear and convincing evidence, and a parent who can articulate their situation coherently makes that difficult.
What is the difference between guardianship and power of attorney?
A power of attorney is signed voluntarily by a person with capacity and requires no court involvement. Guardianship is imposed by a court after a finding of incapacity and removes legal rights.
Is a supported decision-making agreement legally recognized in Texas?
Yes, under Chapter 1357 of the Texas Estates Code. The adult retains full decision-making authority and designates a supporter to assist with understanding and communicating decisions.
How long does guardianship last?
Until the ward’s death, until capacity is restored by court order, or until the court modifies or terminates it. Guardianships can be restored or limited if the ward’s condition improves.
Can a guardian be paid?
Courts may authorize reasonable compensation from the ward’s estate, subject to approval. Family guardians frequently serve without compensation, but they are entitled to reimbursement of proper expenses.
Your Next Step
If your parent still has capacity, the planning documents are the answer and the window is open. If capacity has already declined, guardianship exists precisely for that situation, and the process is manageable with the right preparation.
Griffin & Cain, Attorneys at Law handles guardianships and incapacity planning throughout Montgomery and Walker Counties. Schedule your consultation with probate and guardianship attorney Robert S. Griffin to determine which path fits your family. Contact our Conroe office today. We serve families in Conroe, The Woodlands, Montgomery, Willis, Magnolia, and Huntsville.
