Priority to Serve as Guardian

In a guardianship action for an incapacitated adult, there are many factors a court considers in the appointment of a guardian. A court must find that the person is not disqualified to serve as guardian. A few of the easier-to-determine factors for disqualification require that the proposed guardian:

  • is over age 18;
  • does not have a history of conduct that is not “notoriously bad” (felony convictions are a good indicator);
  • has not been declared to be incapacitated himself;
  • doesn’t have a certain lawsuit pending against the proposed ward;
  • doesn’t owe the proposed ward any money;
  • isn’t claiming that the proposed ward owes the guardian any money;
  • is capable of properly and prudently managing and controlling the proposed ward and the estate;
  • was not named as an individual not to serve as guardian in a declaration by the proposed ward when the proposed ward had capacity to execute such a declaration.

Additionally, a court must find the guardian to be “suitable.” The factors that determine suitability are often the subject of heated disputes both among family and in the probate court. Suitability hinges on many facts, including the proposed guardian’s criminal history and financial history, if a guardianship of the estate is sought.

When two or more suitable persons are seeking to be appointed as guardian, then the Texas Estates Code has a scheme of priority. The priority begins with the spouse of the proposed ward and then goes in order of the nearest relative.

In situations where there are two individuals who have the same priority, then the court must then determine which person among those who have the same priority is best qualified to serve as guardian. However, if there are two individuals and one of them is a more distant relative, then the statutory priority scheme can be useful. For example, if a proposed ward is not married but has both suitable children and suitable siblings, the proposed ward’s children would have priority to serve over the proposed ward’s siblings.