A guardian of the person is generally responsible for the ward’s personal care, residence, medical needs and well-being. A guardian of the estate is generally responsible for protecting and managing the ward’s money and property. A Texas court may appoint one person to perform both roles or appoint different people for each responsibility.

The court order controls the guardian’s exact authority. A guardian should not assume that an appointment provides unlimited power over every personal or financial decision.

Families considering guardianship can begin with our guide explaining how guardianship works in Texas or learn about Walter Law’s San Antonio guardianship services.

 

What Is a Guardian of the Person in Texas?

A guardian of the person is appointed to protect and care for the ward’s personal needs. The ward may be an incapacitated adult or, in some situations, a minor.

Depending on the court order, a guardian of the person may be responsible for decisions involving:

• The ward’s residence;

• Medical and dental care;

• Food, clothing and shelter;

• Personal safety;

• Education or training;

• Access to appropriate services; and

• Other matters affecting the ward’s daily well-being.

Under the Texas Estates Code, a guardian of the person has duties involving the care, control and protection of the ward. The court may limit those powers based on the ward’s actual abilities and needs.

 

What Is a Guardian of the Estate in Texas?

A guardian of the estate is appointed to protect and manage the ward’s property and financial affairs.

Depending on the estate and the court’s order, the guardian’s responsibilities may include:

• Identifying and securing the ward’s assets;

• Managing bank and investment accounts;

• Collecting income, rent or debts owed to the ward;

• Paying authorized expenses;

• Maintaining insurance;

• Protecting real estate and personal property;

• Keeping guardianship funds separate;

• Maintaining detailed financial records;

• Filing inventories and annual accountings; and

• Requesting court approval before certain transactions.

 

A guardian of the estate acts as a fiduciary. The guardian must manage the estate for the ward’s benefit—not for the guardian’s personal interests.

The guardian’s financial authority comes from the court order and Texas law. Appointment as guardian does not permit unrestricted use, transfer or sale of the ward’s property.

 

Guardian of the Person vs. Guardian of the Estate
Responsibility                            Guardian of the person                 Guardian of the estate
Personal care and safety                                Yes                                     Generally no
Residence decisions                                   Often                                     Generally no
Medical-care decisions                               Often                                     Generally no
Food, clothing and shelter                             Yes            May provide funds as authorized
Managing bank accounts                 Generally no                                                   Yes
Collecting income or rent                  Generally no                                                   Yes
Protecting financial assets                  Generally no                                                  Yes
Managing real property                    Generally no                                                  Yes
Filing an annual personal report                      Yes                                                  No
Filing financial accountings                             No                                                  Yes
Court supervision                                          Yes                                                  Yes

These are general distinctions. The court’s order and letters of guardianship determine what a particular guardian is authorized to do.

 

Can the Same Person Serve in Both Roles?

Yes. A Texas court may appoint one individual as guardian of both the person and the estate. That guardian assumes the duties of both roles.

The court may instead divide the responsibilities between two people. For example:

• One family member may manage the ward’s care and medical needs;

• Another qualified person or professional may manage the ward’s property;

• A family member may serve as guardian of the person while a corporate or professional fiduciary manages the estate.

Separating the roles may be appropriate when the proposed guardian is well suited to personal-care decisions but lacks the experience or ability to manage substantial assets.

When two guardians are appointed, communication is important. The guardian of the person may identify a personal or medical need, while the guardian of the estate determines how authorized funds can be used to address it.

 

Who Is the Ward?

The ward is the person for whom the court establishes the guardianship. A ward may be:

• An incapacitated adult;

• A minor requiring a guardian of the person;

• A minor who owns property requiring management; or

• A person needing only limited assistance in identified areas.

A medical diagnosis or disability does not automatically mean that a person needs both types of guardianship. The court evaluates the person’s functional abilities, available supports and the specific authority being requested.

A limited guardianship may allow the ward to retain rights and decision-making powers that the court determines the person can exercise safely.

 

Duties of a Guardian of the Person

Protecting the Ward

The guardian is responsible for taking reasonable steps to protect the ward’s personal safety and welfare. This may involve arranging appropriate housing, supervision, care and supportive services.

The guardian should consider the ward’s abilities, preferences and existing relationships when making decisions.

Providing Care and Support

The guardian may be responsible for ensuring that the ward receives necessary:

• Food;

• Clothing;

• Shelter;

• Medical care;

• Dental care;

• Education;

• Rehabilitation; and

• Social or supportive services.

The guardian may coordinate these services without personally providing all day-to-day care.

Making Medical Decisions

A guardian of the person may receive authority to consent to medical treatment. The exact authority depends on the court order and applicable law.

The guardian should obtain appropriate information, consider the ward’s known preferences and act in the ward’s best interests.

Encouraging Independence

Guardianship should not remove more rights than necessary. A guardian should encourage the ward to participate in decisions and maintain as much independence as the person’s abilities and safety permit.

Filing Annual Reports

A guardian of the person generally must submit an annual report describing the ward’s:

• Living arrangements;

• Physical and mental condition;

• Medical care;

• Services received;

• Contact with the guardian; and

• General welfare.

The court uses these reports to monitor the ward’s condition and the guardian’s performance.

 

Duties of a Guardian of the Estate

Identifying and Protecting Property

The guardian must identify the ward’s assets and take reasonable steps to protect them. This may include bank accounts, investments, personal property, business interests and real estate.

Preparing an Inventory

A guardian of the estate generally must file an inventory identifying the ward’s property and its value. The applicable deadlines and filing requirements should be confirmed with the court and counsel.

Managing Funds Carefully

The guardian must keep the ward’s funds separate from the guardian’s personal money. Guardianship accounts and financial records should clearly document receipts, expenses and transactions.

Using the ward’s property for the guardian’s personal benefit can violate fiduciary duties and lead to removal, repayment obligations or other consequences.

Obtaining Court Approval

Certain financial actions may require advance court approval. These can include:

• Selling real estate;

• Spending principal;

• Making significant investments;

• Settling certain claims;

• Borrowing money;

• Transferring property; or

• Entering particular contracts.

A guardian should determine whether authorization is required before completing a transaction.

Filing Annual Accountings

A guardian of the estate generally must file financial accountings showing:

• Money received;

• Expenses paid;

• Property remaining;

• Changes in asset values;

• Transactions completed; and

• Other information required by the court.

Bexar County’s probate courts provide guardians with local instructions and reporting requirements in addition to the requirements imposed by Texas law.

 

What Happens When the Ward Owns Real Estate?

Real property can make a guardianship estate considerably more complicated. The guardian may need to address:

• Mortgage payments;

• Property taxes;

• Insurance;

• Repairs and maintenance;

• Tenants and rental income;

• Title problems;

• Co-owners;

• Homestead issues; and

• A potential sale or transfer.

A guardian of the estate generally cannot assume that letters of guardianship alone authorize a sale. Court approval, valuation requirements, notices and other procedures may apply.

When guardianship property includes a home, land or rental property, guidance concerning Texas real estate law may be needed alongside the guardianship proceeding. Walter Law’s San Antonio real estate attorneys assist with title, ownership and transaction issues that may affect guardianship property.

 

Can a Guardian of the Person Control the Ward’s Money?

Not necessarily. A person appointed only as guardian of the person generally does not receive the powers of a guardian of the estate.

The guardian of the person may make decisions affecting the ward’s care, but another person may be responsible for paying expenses and managing funds.

Other arrangements may also control the ward’s money, including:

• A trustee;

• An agent acting under a valid power of attorney;

• A representative payee;

• A court-created management trust; or

• A guardian of the estate.

The legal source of authority should be identified before anyone accesses or spends the ward’s funds.

 

Can a Guardian of the Estate Make Medical Decisions?

Not simply because the person manages the estate. Financial authority and personal-care authority are different.

A guardian appointed only over the estate generally handles property and finances. Medical decision-making may belong to:

• The ward, if that right was retained;

• A guardian of the person;

• An agent under a valid medical power of attorney; or

• Another person authorized by law.

The controlling documents and court orders should be reviewed when authority is uncertain.

 

Does Every Guardianship Need Both Types of Guardians?

No. The court should create only the guardianship necessary to address the ward’s demonstrated needs.

Examples include:

• A person may need assistance making medical and residential decisions but remain able to manage limited finances.

• A minor may live safely with a parent but need a guardian of the estate to manage inherited property.

• An adult may need financial protection while continuing to make many personal decisions.

• Available alternatives may eliminate the need for one or both forms of guardianship.

Families should evaluate alternatives to guardianship in Texas, including powers of attorney, trusts, representative-payee arrangements and supported decision-making. If incapacity planning can be completed in advance, a Texas estate plan may help preserve more options.

 

What Is a Limited Guardianship?

A limited guardianship removes only the rights that the court determines the ward cannot safely exercise.

For example, the court might authorize a guardian to make complex financial decisions while allowing the ward to retain authority over ordinary purchases or other personal matters.

The order should identify:

• The rights removed from the ward;

• The rights retained by the ward;

• The guardian’s specific powers;

• Any restrictions on the guardian; and

• The duration or conditions of the appointment, when applicable.

A guardian must remain within those limits.

 

Which Type of Guardian Does My Family Member Need?

The answer depends on the decisions the person cannot safely make and the alternatives already available.

Questions to consider include:

• Can the person make informed medical decisions?

• Can the person choose and maintain a safe residence?

• Can the person manage money and pay essential expenses?

• Is the person vulnerable to financial exploitation?

• Does the person own substantial property?

• Are valid powers of attorney or trusts already in place?

• Could supported decision-making or another alternative provide sufficient protection?

• Is the requested guardianship broader than necessary?

A San Antonio guardianship attorney can review the circumstances and help determine whether guardianship of the person, the estate, both or neither may be appropriate.