This page covers guardianships that are being fought over: contested applications, competing applicants, and actions to remove a guardian who is already serving. If your family agrees that a relative needs a routine guardianship, this page isn’t about your situation.
A guardianship takes legal rights away from an adult, and Texas sets a high burden of proof to match.
Under Texas Estates Code Section 1101.101, before appointing a guardian the court must find by clear and convincing evidence that the proposed ward is an incapacitated person, that the appointment is in the proposed ward’s best interest, and that the proposed ward’s rights or property will be protected by it.
Two more findings in the same subsection are often where contested cases are won and lost. The court must also find, by clear and convincing evidence, that alternatives to guardianship were considered and determined not to be feasible, and that supports and services available to the proposed ward were considered and determined not to be feasible.
Section 1101.001 requires the application itself to state whether those alternatives and supports were considered and whether they’re feasible and would avoid the need for a guardianship. Section 1101.101(b) spells out the consequence: the court may not grant the application unless the applicant proves each required element.
In practice, a contest often turns on whether a power of attorney, a management trust, a supported decision-making agreement, or existing family and medical support would do the job. An applicant who treats those questions as a formality hands the other side its best argument.
Under Section 1055.001(a), any person has the right to commence a guardianship proceeding or to appear and contest one, including contesting the appointment of a particular person as guardian.
Section 1055.001(b) limits that right. A person with an interest adverse to the proposed ward or incapacitated person may not file an application, contest the creation of a guardianship, contest who is appointed, or file or contest a request to remove a guardian. Under Section 1055.001(c), the court decides that standing question by motion in limine, so it gets litigated early.
The rule can help or hurt you. It’s a real defense against a relative with a financial stake in the outcome, and it’s a real risk for a client whose own position looks adverse. Either way, we deal with it at the front of the case.
Texas has two separate removal tracks, and the one that applies determines how the matter is filed.
Removal without notice. Under Section 1203.051, the court may remove a guardian without notice, on its own motion or on the motion of an interested person, including the ward. The grounds include neglecting to qualify as required, failing to return an inventory of the guardianship estate and list of claims within 30 days of qualifying unless the deadline is extended, failing to give a required new bond, being absent from the state three or more consecutive months without permission, and being impossible to serve because the guardian can’t be located or is evading service.
Most of those grounds are procedural defaults that can be proved from the court’s own file, which makes this track fast. Section 1203.051 also reaches misapplying or embezzling estate property, abuse, neglect, or exploitation of the ward, and failing to educate or maintain the ward as the estate permits. Removal on the misapplication or abuse grounds requires clear and convincing evidence given under oath under Section 1203.056, and the removed guardian can apply for reinstatement within 30 days. In those cases the court must also appoint a guardian ad litem and an attorney ad litem.
Removal with notice. Section 1203.052 covers the conduct grounds, after the guardian has been notified or personally cited to answer. They include sufficient grounds to believe the guardian has misapplied, embezzled, or removed estate property from the state or is about to, failure to return a required account or report, failure to obey a proper court order, gross misconduct or mismanagement in performing the guardian’s duties, and becoming incapacitated, being sentenced to the penitentiary, or otherwise becoming unable to perform the duties. The statute lists several other grounds as well.
Most serious removal cases are brought under Section 1203.052, and most of them are built on the annual accounts and reports the guardian has filed, or failed to file. A guardian of the estate who can’t produce a coherent account has usually created the record the case needs.
Harris County has five statutory probate courts, created by Texas Government Code Section 25.1031(c).
Probate Courts No. 1 through 4 sit at the Harris County Civil Courthouse, 201 Caroline Street. Probate Court No. 5 is at 1115 Congress Street, 5th Floor. A removal motion is filed in the existing guardianship case, so it goes before the judge who has already been hearing the matter. That judge’s earlier rulings and impressions of the guardian will be part of the picture.
Expect the court to appoint its own participants. Section 1054.001 requires an attorney ad litem for the proposed ward when a guardian is being appointed, and the court may also appoint a guardian ad litem or a court visitor. Each of them reports their own view to the court, and the court gives that view real weight.
We don’t set up routine uncontested guardianships. If your parent needs a guardian, the family agrees, and nobody is fighting, you don’t need a litigation firm and shouldn’t pay for one. We’ll tell you that on the first call and point you to someone who fits.
We also don’t handle routine uncontested probate, muniment of title, small estate affidavits, affidavits of heirship, or simple wills.
The first conversation is a short call, and it’s free. Bring the cause number if one exists, the name of the guardian or proposed guardian, copies of any accounts or reports that have been filed, and a short description of who is on the other side and what they want.
Schedule a consultation or call (281) 219-9090.