Avoiding Guardianship Proceedings



When a person lacks capacity to make decisions for himself or herself the law provides a mechanism for selection and appointment of a surrogate.  In Texas, a person appointed by a court to handle financial matters for an incapacitated adult (the ward) is called the guardian of the estate, and the person named to make medical, placement and other personal decisions is called the guardian of the person.  The court may appoint only one or the other, and may appoint the same person to both roles.  The court will require annual or more frequent accountings and status reports, and some major decisions may need to be submitted to the court for approval in advance.

The cost, court oversight and public disclosure in guardianship proceedings may seem overwhelming to both the ward and the guardian(s), but the system operates as if every participant might be acting inappropriately in order to minimize improper acts.  Many individuals planning for the possibility of their own incapacity might prefer to avoid the involvement of the legal system if possible.

There are often alternatives to guardianship.  Well drafted Durable Powers of Attorney (using two separate documents covering financial and health care decisions) can reduce the need for later court proceedings. But if the wrong person is given the power, there may be a significant risk.  In the wrong hands, powers of attorney can literally be licenses to steal.  Sadly, even trusted family members may abuse the authority given to them.  A power of attorney also requires that the signer be competent at the time, so if incapacity has already set in it will be too late to use this mechanism to avoid court involvement. 

Some people might plan for their own incapacity by creating living trusts, establishing a mechanism for orderly transition of financial management, at least, to children or other trusted relatives.  Once again, however, the lack of third-party oversight can make such arrangements risky.  But the benefits may outweigh the risks.

The Social Security Administration and most other pension and retirement programs allow for selection of someone to manage payments to an incapacitated retiree.  The “representative payee” designation will often be a reasonable substitute for formal court action, and without the cost of lawyers and court monitoring.

While Texas permits some family members to make some health care decisions for an incapacitated patient without a Medical Power of Attorney or a guardian, the use of a proper Medical Power of Attorney and Directive to Physicians (formerly a Living Will) will assure the medical decisions you make in advance are carried out.

At the Ensign Law Firm, P.C., our first effort when consulted about the possible need for a guardianship is almost always to try to find less-expensive and less-intrusive alternatives. Sometimes, though, the best (or only) choice is court action to protect the incapacitated person.  We can assist you and your loved ones in this process.


Mark R. Ensign, JD, CPA
Copyright © 2004 Ensign Law Firm, P.C. All rights reserved.
Revised: 8/12/09