Guardianship Attorney Austin: What the Ward Keeps and What the Court Must Find

A Texas guardianship does not erase a person’s legal rights. That is the detail most families never expect when they start looking for a guardianship attorney Austin probate courts see every week. State law spells out twenty-six specific rights that a ward keeps. Those rights survive even after a judge appoints someone else to manage part of a ward’s life. A guardianship does not replace the ward’s identity. Instead, it replaces specific decisions the ward can no longer safely make alone. Before a court reaches that point, though, the law demands findings that are deliberately hard to satisfy. This article covers what a ward retains and what a judge must find first. It also covers where an Austin case gets heard.

What a guardianship attorney Austin residents hire cannot take away

§ 1151.351 of the Texas Estates Code lists twenty-six rights that belong to every ward. That holds true no matter what kind of guardian a court appoints. For an Austin elder guardianship case, that list often becomes the single most useful document a family receives. Several of the twenty-six stand out.

A ward has the right to a copy of the guardianship order. That includes contact information for the probate court that issued it. A ward also has the right to reside in the most integrated setting available. In practice, that can mean a home-based or community-based arrangement instead of institutional care by default.

Financial rights survive too. Once essential needs are met, a ward keeps the right to financial self-determination over public benefits. The ward also keeps a right to a monthly personal allowance.

Communication rights are just as concrete. A ward retains the right to unimpeded, private, and uncensored communication and visitation with people of their own choosing. A guardian can restrict that only to prevent harm, and even then, the ward can ask for a hearing. Voting, marriage, and a driver’s license all stay intact, unless a court specifically restricts them. A guardian also owes the ward in-person visits at least once every three months. Circumstances can call for more, and the court can order that too.

The findings a Texas court must make before appointing a guardian

§ 1101.101 sets out two tiers of findings before a court can grant guardianship. Each finding carries its own burden of proof. Five findings fall under the higher, clear-and-convincing standard.

The court must find that the proposed ward is an incapacitated person. It must also find that guardianship serves the ward’s best interest. A guardian must also be able to protect the ward’s rights or property. Two findings in this group deserve particular attention. The court must find that less restrictive alternatives to guardianship have been considered and are not feasible. It must separately find that available supports and services have also been considered and are not feasible. That standard is not the ordinary preponderance standard — it is clear and convincing, and harder to clear.

A second, shorter list of findings only needs to meet the preponderance standard. That list covers venue and the proposed guardian’s eligibility. It also covers whether the ward lacks capacity for all tasks or only some of them. In a Texas incapacitated adult guardianship matter, this two-tier structure shapes where the real fight happens. The harder argument is usually over alternatives and supports, not the paperwork.

The medical certificate: two versions, one 120-day window

Before a court can act on any of those findings, it needs a medical certification of incapacity. § 1101.103 sets that requirement, and the current text of the statute has an odd feature worth flagging.

The code prints two separate 2023 amendments side by side, and the legislature never reconciled them. One version, from Senate Bill 1624, lets a physician or a licensed psychologist perform the exam. The other version, from House Bill 3009, allows a physician or an advanced practice registered nurse to perform it. A supervising physician must then countersign the nurse’s letter. Each version of the statute cross-references the other. That tells you the legislature knew about the conflict; it wasn’t an accident.

What the two versions agree on is the deadline. Both set the same window. The certificate’s date and the exam itself must fall within 120 days before filing. Neither version gives extra time to the other. Because it is unclear which version controls in a given filing, the safer course is caution. A physician qualifies under both 2023 versions, so that choice sidesteps the question entirely.

Less restrictive options a court must rule out

§ 1002.0015 lists nine alternatives to guardianship a court must consider first, under that clear-and-convincing finding. The list includes a medical power of attorney and a durable power of attorney. It also includes a declaration for mental health treatment and a representative payee for public benefits. Rounding out the list: a joint bank account, a management trust, and a special needs trust.

The ninth item is worth a precise note, because it gets misdescribed often. It is not a named supported decision-making agreement. Instead, it reads as alternate forms of decision-making based on person-centered planning. That specific term never appears in the statute’s list. The broader planning language is the closest the statute gets. Still, it leaves room for arrangements the legislature never spelled out one by one. A family weighing these options is working through the same list the court itself must consider. That list comes before guardianship becomes an option at all.

Where a guardianship attorney Austin case gets heard

Travis County has two statutory probate courts, under Gov’t Code § 25.2291(c). They are Probate Court No. 1 and Probate Court No. 2. Guardianship cases are not assigned by subject matter, though. Instead, the county clerk dockets cases by number, under § 25.2293(e). Odd-numbered guardianship, probate, and trust cases go to Court No. 1. Even-numbered cases go to Court No. 2.

One exception matters for guardianship specifically. Probate Court No. 2 has primary responsibility for mental health matters, under § 25.2293(d). That responsibility applies separately from the general odd-even split. In practice, which court a family ends up in front of can depend on both rules at once.

The bottom line

Texas guardianship law is protective on paper. A ward keeps twenty-six specific rights. A court must also clear a high, clear-and-convincing bar on alternatives and supports before appointing anyone. The medical evidence behind that appointment has a firm shelf life, too. Any guardianship attorney Austin families consult will likely say the same thing once the paperwork starts. The process itself is still slow. It plays out in a public court record. And it costs the family that starts it real time and effort. The statute’s protections do not make the process quick, cheap, or private. They just make it harder to get wrong.

Keep reading: Guardianship and Conservatorship in Arizona · Elder Guardianship for an Aging Parent

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This article describes Texas guardianship law for general information only. It is not legal advice, and it does not create an attorney-client relationship. Guardianship turns on medical and personal facts specific to each proposed ward, and the governing sections have been amended in ways courts are still working through. Any family weighing guardianship in Texas should speak with a licensed Texas attorney about their own situation.

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