Before a guardian can be appointed, the court must make specified findings and cannot grant the application unless the applicant proves every required element.
Sec. 1101.101. FINDINGS AND PROOF REQUIRED. (a) Before appointing a guardian for a proposed ward, the court must: (1) find by clear and convincing evidence that: (A) the proposed ward is an incapacitated person; (B) it is in the proposed ward's best interest to have the court appoint a person as the proposed ward's guardian; (C) the proposed ward's rights or property will be protected by the appointment of a guardian; (D) alternatives to guardianship that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible; and (E) supports and services available to the proposed ward that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible; and (2) find by a preponderance of the evidence that: (A) the court has venue of the case; (B) the person to be appointed guardian is eligible to act as guardian and is entitled to appointment, or, if no eligible person entitled to appointment applies, the person appointed is a proper person to act as guardian; (C) if a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which the minor is not otherwise eligible for enrollment; and (D) the proposed ward: (i) is totally without capacity as provided by this title to care for himself or herself and to manage his or her property; or (ii) lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage his or her property. (b) The court may not grant an application to create a guardianship unless the applicant proves each element required by this title. (c) A finding under Subsection (a)(2)(D)(ii) must specifically state whether the proposed ward lacks the capacity, or lacks sufficient capacity with supports and services, to make personal decisions regarding residence, voting, operating a motor vehicle, and marriage. Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014. Amended by: Acts 2015, 84th Leg., R.S., Ch. 214 (H.B. 39), Sec. 8, eff. September 1, 2015.