How to Declare Someone Incompetent to Manage Affairs in Texas

By Teo Spengler - Updated July 23, 2018
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In an ideal world, a Texas guardianship can be viewed as matching someone who needs help with someone who can provide that help. But it's not quite that simple, since the court appoints a guardian for an adult only if the person is declared incompetent or incapacitated. The court appoints someone called the guardian to care for the incapacitated person or look after her affairs. In Texas, the proceedings are called guardianships.

Incapacitated Person Guardianship

Those who are incapacitated require the appointment of a guardian. An adult who can't provide herself with food, clothing and nurture or can't take care of her medical care and finances is an incapacitated person under Texas law. The incapacity could be due to a physical or mental condition.

All guardianships are not exactly the same. A guardian appointed to look after the general well-being of an incapacitated person is termed a guardian of the person. If the guardian is appointed to look after her finances, he is called a guardian of the estate. Sometimes one person is appointed to serve in both capacities, but two different guardians are sometimes named.

How to Get Guardian Appointed

If you know someone you believe should be declared incompetent in Texas, you probably don't want to proceed without legal help. Unlike some other states, Texas procedures for proving that a person is incapacitated and getting a guardianship are extremely complex – so complex that courts, as a rule, don't accept applications filed by anyone other than an attorney.

To get a guardianship set up for someone unable to manage his affairs, you must prove incapacity. The burden of proof is quite high: clear and convincing evidence. You'll need a certificate from a doctor completing an evaluation of the person, and the requirements are detailed and specific. The doctor must file it, for example, within 120 days of the date you file the application for guardianship, so it's important to figure out what you are doing before the exam is conducted.

Once you file an application, the Texas court appoints an attorney to represent the person you believe to be incapacitated. This attorney's job is to protect the person's civil rights. Keep in mind that, just because a person is incapacitated in one area, that doesn't mean Texas courts slap him with a general guardianship. They use the doctrine of least restrictive alternatives, only giving the guardian the minimum rights and powers necessary to protect the person or his property.

The better alternative is a power of attorney guardian. A power of attorney is a legal document naming a trusted individual to look after your affairs if you become incompetent. With this type of power of attorney, you get to pick your "guardian" yourself. However, you must prepare and sign the power of attorney while you are competent. If an incapacitated person has not made such a document, the court must select a guardian.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Spengler splits her time between the French Basque Country and Northern California.

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