Contested Guardianship

A guardianship application asks a Travis County probate judge to give an adult’s decisions to someone else. Once a family member objects to the guardianship, or to the person who wants to serve, the case is headed for a contested hearing. We handle contested guardianships and the removal of guardians already serving, and those are the only guardianship matters we take.

How a Contested Guardianship Moves Through the Travis County Courts

The first thing a contest changes is the docket. The Travis County probate courts run a separate uncontested guardianship docket, and an opposed application comes off it and goes to the regular docket, where every hearing has to be requested and set.

Local Rule 3.1(a) lists the courts’ dockets, including a jury docket, an uncontested guardianship docket, and a regular docket for other hearings. Rule 3.1(b): none of the dockets are drop-in dockets, and every hearing is specifically set.

The cause number decides your judge. Under Local Rule 1.3(a) the county clerk dockets odd-numbered guardianship cases in Probate Court No. 1, where Judge Guy Herman sits, and even-numbered cases in Probate Court No. 2, where Judge Nicholas Chu sits. Both courts are at 200 W. 8th Street, and the number was fixed when the first application was filed.

If you need the court quickly, you’ll deal with court staff before you see the judge. For guardianship emergencies the local rules send counsel to the Court Investigator first, so the court often has its own impression of the family before the first hearing.

Local Rule 3.2(c)(1): before asking the Court Coordinator for a hearing on a temporary guardianship or other guardianship emergency, counsel must confer with the Court Investigator or Assistant Court Investigator.

Your proof has to come in through live witnesses. A physician’s letter or a sworn statement from a daughter in another state won’t carry a contested hearing in this courthouse.

Local Rule 4.2(b) prohibits remote participation in a contested matter when documentary evidence will be presented. Rule 4.3 prohibits affidavits in lieu of live testimony or depositions unless the law authorizes them.

The court also won’t send out notice of your settings. Under Local Rule 3.3 the party that gets a setting has to notify everyone else. Contested guardianships here commonly take more than a year.

Findings Required Before a Guardianship Is Created

A judge creates a guardianship only after making the findings the Estates Code requires. An objection that goes after the applicant’s character without reaching one of those findings rarely gets anywhere.

Texas Estates Code 1101.101 sets out the required findings. Incapacity, the proposed ward’s best interest, the need to protect the person’s rights or property, and that alternatives to guardianship were considered and found not feasible must be proved by clear and convincing evidence. Other findings, including venue and the proposed guardian’s eligibility, are proved by a preponderance of the evidence.

Early in the case, we look for the weakest finding and the witness who can speak to it in Judge Herman’s or Judge Chu’s courtroom. Whether the proposed guardian is a decent person matters much less to the outcome.

Travis County also limits who can apply. Under a court policy dated October 1, 2024, anyone applying for guardianship of the person or estate of another must be represented by a licensed attorney. A pro se party may represent only himself or herself and can’t represent anyone else, including a ward.

Removing a Guardian Who Is Already Serving

Removal usually comes later in the life of a guardianship, after the family has watched for a while and run out of patience. Someone already holds authority over a person or that person’s money, and the question is whether the court should take it away.

Texas Estates Code 1203.051 lets the court remove a guardian without notice on listed grounds, including failing to file the inventory on time, misapplying estate property, and abuse, neglect or exploitation of the ward. Section 1203.052 covers removal with notice, on the court’s own motion or an interested person’s complaint, on grounds that include failing to file required accounts or reports, disobeying a court order, and gross misconduct or mismanagement.

A removal case is built on records, and most of them are reports and accountings the guardian was already required to file. A guardian is a fiduciary, so the breach of fiduciary duty analysis we use with executors and trustees applies here too.

Keep the case moving. Under Local Rule 6.1 a case on file more than twelve months, with no trial setting and no settings or substantive filings in 180 days, can be placed on the dismissal docket, and under Rule 6.2 the court can dismiss it on its own motion. While a removal case sits, the guardian keeps serving.

What We Don’t Handle

We don’t set up routine guardianships. If nobody is contesting the application and you need someone to prepare it and take it through the uncontested docket, we’re the wrong firm, and we’ll tell you so before taking the file. We also don’t handle annual reports or routine administration once a guardianship is running without a dispute.

We don’t do muniment of title, small estate affidavits, affidavits of heirship, simple wills, estate planning or routine uncontested probate. We take opposed applications, the defense of applications, guardian removals, and the related executor and administrator removal work that often comes with them. We appear in Travis County and also handle cases in Williamson, Hays, Bastrop, Caldwell and Burnet counties.