Guardianship of a Child or Adult in Texas

Under the Estates Code, a minor is an 'incapacitated person' for whom a guardian may be appointed, and any person may file a sworn application in a court with jurisdiction and venue. Parents are the natural guardians of their children. A surviving parent may name a guardian of the person by will or written declaration, and the court must appoint that person unless that person is disqualified, has died, refuses to serve, or would not serve the children's best interests; otherwise, for an orphaned minor, the nearest ascendant (such as a grandparent), then the nearest relative, has priority. The court must find by clear and convincing evidence that a guardianship is in the minor's best interest, and that it is not being created mainly to enroll the minor in a school district.

Any person may file a sworn application. Before appointing a guardian, the court must find by clear and convincing evidence that the adult is incapacitated (substantially unable to provide food, clothing or shelter, care for their health, or manage their finances because of a physical or mental condition), that guardianship is in their best interest, and that alternatives to guardianship and available supports and services that would avoid guardianship were considered and are not feasible. Listed alternatives include medical and durable powers of attorney, mental health declarations, representative payees, joint accounts, management and special needs trusts, and person-centered decision-making. For a partial guardianship, the order must say whether the person can make decisions about residence, voting, driving and marriage.