Who can serve as Guardian?

When a loved one is not able to care for his or her own affairs, it is often necessary that a court appoint a guardian who can make personal decisions and handle the finances for the person who has an incapacity. Under Texas law, a person a court finds to have an incapacity is called a “ward.” There are guardians appointed to handle the ward’s property – called “guardians of the estate” and guardians to handle personal decisions and healthcare of the ward – called “guardians of the person.”

 

Often, one of the more difficult aspects of guardianship involves finding suitable guardians to protect the ward and the ward’s property. To ensure that the ward’s interests are protected, the Texas Probate Code does not allow an individual to serve as guardian if that individual is:

 

  • A minor
  • A person whose conduct is notoriously bad
  • An incapacitated person
  • A person who is a party or whose parent is a party to a lawsuit concerning or affecting the welfare of the ward, under certain circumstances
  • A person who owes the ward money
  • A person who has a claim adverse to the ward
  • A person who is not capable of prudently managing the ward or the ward’s property
  • A person the court finds to be unsuitable
  • A person the ward disqualified in a declaration of guardian

 

A nonresident of Texas can serve as guardian if the nonresident meets the above requirements and has designated a resident agent to accept service of process in the guardianship matter.

 

Additionally, the guardian of the estate must also be able to qualify for a bond in an amount sufficient to protect the ward’s assets. Sometimes the requirement of qualifying for a bond prohibits family members from serving as guardian of the estate, but they can still serve as guardian of the person. Also, the guardians themselves must be physically able to manage the care of the ward.

 

Most of the time, the immediate family of the ward are the best people to serve as guardian. If there is no family who can qualify to serve, perhaps the ward has friends, neighbors, co-workers, or church members who are willing to serve. In some circumstances, no one is willing and/or able to serve, the court will then appoint a suitable person who has received certification to serve as guardian.