Guardianship and Conservatorship for Adults: When a Court Has to Step In

Sooner or later, many families caring for a parent with dementia reach a point where a decision has to be made and no one has the legal authority to make it: selling the house to pay for care, moving to memory care, dealing with a bank that won’t talk to them. If your parent signed a power of attorney and a healthcare proxy while still able, you may never need a court. If not, guardianship may be the only route. This guide explains what it is, what it costs the person in rights, what to try first, and how the court process works, using Texas as a worked example because its statutes are clear. Your state’s rules will differ.

What are guardianship and conservatorship?

They are court-ordered arrangements in which a judge appoints a person to make decisions for an adult found unable to make them. Guardianship is governed by state law, and the terms vary:

• A model law developed by the Uniform Law Commission uses guardian for a person appointed to manage another person’s care and well-being, and conservator for a person appointed to manage another person’s property. According to the Department of Justice, states use those terms differently. California, for example, uses conservator for someone appointed to make personal and financial decisions for an adult, and Louisiana uses curator
• Texas uses guardian of the person (personal and medical decisions) and guardian of the estate (property and money), and “guardian” can mean either or both. A person under guardianship is called a ward, though many states are moving away from that word

The Department of Justice also stresses that a court’s finding of incapacity in this setting is a legal finding, not only a medical one.

What rights can be lost?

A lot. The Department of Justice lists rights a court may remove in a guardianship, depending on the state: to determine where to live, consent to medical treatment, make end-of-life decisions, have a driver’s license, manage or sell property, own a firearm, sign contracts or file lawsuits, marry, and vote. That’s why courts and advocacy groups say it should be a last resort, and why recent law and practice favor limited guardianship, in which a court removes only the rights the adult can’t handle.

What should we try first?

Before filing, ask whether something less restrictive would work. Texas law lists “alternatives to guardianship” that include:

• A medical power of attorney (a healthcare proxy)
• A durable power of attorney for financial matters
• A declaration for mental health treatment
• A representative payee to manage public benefits
• A joint bank account
• A management trust or special needs trust
• Designating a guardian in advance, before the need arises
• Other forms of decision-making based on person-centered planning

Other sources add:

• Social Security’s representative payment program. The Social Security Administration may appoint someone to manage a person’s disability or Supplemental Security Income benefits if they can’t manage them, and monitors the payee. The Department of Veterans Affairs has a similar fiduciary program
• Supported decision-making. The Administration for Community Living describes it as an alternative in which a person keeps the right to decide, with the help of trusted people they choose. Texas has a Supported Decision-Making Agreement Act for an “adult with a disability,” defined as someone with a physical or mental impairment that substantially limits a major life activity. The agreement has to be entered into voluntarily, so it is generally an early-stage tool, not one that works once a person can no longer understand it
• Health care default rules. If the issue is medical decisions only, a default surrogate law may let family decide; see making medical decisions when a parent with dementia can no longer decide

If a parent can still sign, see can someone with dementia still sign a will or power of attorney? The time to sign is early, and planning ahead after an early dementia diagnosis covers what to do.

When does guardianship become necessary?

Typically when the person can’t make or carry out important decisions, there is no valid power of attorney or proxy (or it doesn’t cover the need), and someone has to act: managing money, selling property, arranging care, or protecting the person from exploitation. It may also arise when family members disagree about who should decide. A lawyer can tell you whether your situation meets the legal standard, and whether a narrower step would do.

How does the court process work? (Texas as an example)

Who can start it. In Texas, any person may file a sworn application in a court with jurisdiction, and the Department of Justice notes that in most states any person may. The application must say, among other things, whether guardianship of the person, the estate, or both is sought; the nature and degree of the incapacity and the specific areas of protection requested; which rights the applicant asks to be removed (including voting, driving, and decisions about residence); whether alternatives and supports were considered and whether they are feasible; a description of the person’s property; and who holds any power of attorney.

Protections for the person. The Department of Justice notes that states give a person facing a petition rights such as notice, an attorney, a hearing, being present, presenting and challenging evidence, and appeal. Texas provides for an attorney ad litem to represent the proposed ward, may appoint a guardian ad litem or a court investigator, and the proposed ward must be present at the hearing unless the court decides otherwise, may ask for the hearing to be closed, and is entitled to a jury trial on request. The Governor’s Office says a court investigator must determine whether a less restrictive alternative is appropriate, and that everyone involved must consider alternatives and supports.

Medical evidence. The court may not grant a guardianship for an incapacitated adult without a written letter or certificate from a qualified examiner, in the version we describe a physician or a supervised advanced practice registered nurse, based on an examination within 120 days before the application is filed. It must describe the nature, degree, and severity of the incapacity and the person’s functional deficits in handling business and financial matters, driving, deciding where to live, voting, marriage, and consenting to medical treatment; say whether improvement is possible and when to re-evaluate; and say whether a guardianship is necessary and whether the guardian’s powers should be limited if the person receives supports and services. One caution: this section was amended more than once in 2023, and the official Texas page prints two versions of it, which differ on who may sign the certificate (one version names a physician or a supervised advanced practice nurse, the other a physician or a licensed psychologist). Ask the court or an attorney which applies.

The standard. The court must find by clear and convincing evidence that the person is incapacitated, that the guardianship is in their best interest, that their rights or property will be protected, and that alternatives to guardianship, and available supports and services, have been considered and are not feasible. In Texas an incapacitated adult is one who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for themselves, care for their own physical health, or manage their own financial affairs. A determination of incapacity must be based on recurring acts or occurrences in the preceding six months, not isolated instances of negligence or bad judgment, and age alone can’t be the sole factor.

The order. If the person is totally without capacity, the court can appoint a guardian with full authority. If the person lacks capacity for some but not all tasks, the court may appoint a guardian with limited powers and must say which rights the person keeps. If the person can care for themselves and manage property as a reasonably prudent person would, the court must dismiss the application.

What does a guardian do, and who watches?

The Department of Justice explains that guardians must follow the court order and state law, and that the National Guardianship Association’s standards advise that the guardian:

1. Involve the person in decisions as much as possible, and ask them to make a choice and help them express it
2. If that isn’t possible, decide what the person would have wanted when they had capacity
3. Only if their preferences can’t be determined, decide based on the person’s best interest

Guardians of the person generally file periodic reports with the court, usually annually, and guardians of property file inventories and accountings. The Department of Justice cautions that the extent of court oversight in practice varies tremendously, that courts may take complaints about guardians, and that the model uniform act requires a person-centered plan. Guardianship usually ends at the person’s death, but courts may end or modify it earlier to restore rights if the person’s condition or supports improve, and the person, or anyone concerned about their rights, can petition.

What does it cost, and how long does it take?

We didn’t find reliable national figures, and costs and timelines vary by court and by how contested the case is. Expect attorney fees, medical examination costs, and court costs, and ask a local elder law attorney or the court clerk for an estimate. Some situations call for faster steps: Texas law, for example, has temporary guardianship procedures, and an attorney can tell you whether one fits.

What are practical next steps?

1. Look for documents. Search for a power of attorney, proxy, trust, or earlier guardianship order, and ask the person’s doctor, banker, and lawyer
2. Ask what is actually needed. A specific, narrow need, such as access to one account, may have a narrower fix
3. Consider benefits. If the issue is managing Social Security or VA benefits, ask about a representative payee or fiduciary
4. Talk with an elder law attorney before filing, and get a clear picture of the medical evidence the court will want
5. Talk with family, and with the person themself as far as they can take part
6. Protect the person’s voice. Even under guardianship, the guidance is to involve the person as much as possible

Record your wishes and your decision-makers in a Final Day Plan so that your own family never has to go to court to carry them out.

This is general educational information, not legal advice. Guardianship and conservatorship laws, terms, and procedures differ by state, and Texas is used here only as an example; an elder law attorney in your state can address your family’s situation.