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The Probate Code dictates and prioritizes persons who are eligible to become guardians. The ward’s spouse is entitled to be the guardian before any other individual. If there is no spouse or if the spouse declines or is unable to serve, then the next of kin is the next eligible individual to serve as guardian. If more than one person is entitled to serve in the same degree of kinship, the court appoints the best qualified person. If there is no family member willing or able to serve, the court may appoint any disinterested person, bank, financial institution, or guardianship program. The Texas Department of Protective and Regulatory Services or other agencies may be appointed as guardian for an incapacitated person who does not have a family member or friend who can serve in this capacity.

When determining who to appoint as guardian, the court will consider the incapacitated person’s best interest. The court will give consideration to the ward’s preference and may appoint this person if he or she is not disqualified. It is important to note at this point, Texas residents may designate a guardian prior to incapacity by completing a brief statutory form.

Persons disqualified to serve are:

  • a minor
  • a person whose conduct is notoriously bad
  • an incapacitated person
  • a person who is a party, or whose parent is a party, to a lawsuit concerning or affecting the welfare of the proposed ward
  • a person indebted to the ward, unless the debt has been paid
  • a person asserting a claim adverse to the proposed was or the ward’s property
  • a person who, by lack of education or experience, is incapable of prudently managing the ward’s estate, or
  • a person, corporation, or institution found unsuitable by the court.

It is also presumed not to be in the best interest of a ward to appoint a person as guardian if they have been convicted of:

  • any sexual offense
  • sexual assault
  • aggravated assault
  • aggravated sexual assault
  • injury to a child
  • abandoning or endangering a child, or
  • incest.