(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.

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Terms Used In Texas Estates Code 1101.101

  • Court: means and includes:
    (1) a county court in the exercise of its probate jurisdiction;
    (2) a court created by statute and authorized to exercise original probate jurisdiction; and
    (3) a district court exercising original probate jurisdiction in a contested matter. See Texas Estates Code 22.007
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • Minor: means a person younger than 18 years of age who:
    (1) has never been married; and
    (2) has not had the disabilities of minority removed for general purposes. See Texas Estates Code 22.022
  • Person: includes a natural person and a corporation. See Texas Estates Code 22.027
  • Property: means real and personal property. See Texas Government Code 311.005
  • Venue: The geographical location in which a case is tried.
  • Ward: means a person for whom a guardian has been appointed. See Texas Estates Code 22.033

(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.