When an adult family member can no longer manage money, health care or daily decisions on their own, families often assume guardianship is the only answer. Texas law requires courts to consider less restrictive options first, and in many cases a power of attorney or a supported decision-making agreement works better and costs less.
Guardianship
A guardianship is a court proceeding in which a judge appoints someone to make decisions for an incapacitated person. The guardian can be over the person, the estate (money and property), or both. Before appointing a guardian, the court must find by clear and convincing evidence that the person is incapacitated, that a guardianship is in their best interest, and that alternatives to guardianship and available supports and services have been considered and found not feasible (Texas Estates Code § 1101.101).
Texas law also prefers limited guardianships, which give the guardian only the authority the person actually needs, to encourage as much independence as possible (§ 1001.001). A guardianship requires a court case with medical evidence, and the guardian must keep reporting to the court afterward.
Durable power of attorney
A durable power of attorney lets an adult choose an agent to handle financial matters, and it keeps working if the person later becomes incapacitated. To qualify, it must state that it is not affected by later disability or incapacity (or that it becomes effective on incapacity), and it must be signed and acknowledged before a notary (§ 751.0021). Health care decisions are handled by a separate document, a medical power of attorney.
The key limitation: the person must have capacity when they sign. That is why planning ahead matters. Once someone has lost capacity, a power of attorney may no longer be possible, and guardianship may be the only option.
Supported decision-making agreement
Texas recognizes supported decision-making agreements as a less restrictive substitute for guardianship for adults with disabilities who need help with decisions but are not incapacitated (§ 1357.003). The adult chooses a supporter who helps them understand options, gather information and communicate decisions, but the adult still makes their own decisions (§§ 1357.051–1357.052). These agreements are common for young adults with intellectual or developmental disabilities who are turning 18.
Comparing the options
| Guardianship | Durable power of attorney | Supported decision-making | |
|---|---|---|---|
| Who decides | The guardian, within the authority the court gives | The agent, for the powers granted | The adult, with help from a supporter |
| Court involvement | Court case and ongoing reporting | None to create it | None to create it |
| Capacity needed to set up | Not required; used when capacity is lacking | Must have capacity to sign | Must be able to enter the agreement |
| Restrictiveness | Most restrictive | Less restrictive | Least restrictive |
Learn more on our guardianship and wills and powers of attorney pages.
Talk with an attorney
If you have questions about guardianship or planning for a family member, call the Law Offices of Jesus R. Lopez at (210) 224-5245 or send us a message to schedule a consultation, in English or Spanish.
This article is general information about Texas law, not legal advice for your situation. Contacting us does not create an attorney-client relationship. Results depend on the facts of each case.