Can I Choose Who My Guardian Will Be if I Become Incapacitated in Texas?

 Posted on March 22, 2026 in Guardianship

It’s never pleasant to confront your own mortality, even less so if you don’t have any guardrails in place. Many elderly (and young) people don’t think about guardianship until a crisis forces the issue. If you become incapacitated due to illness, injury, or cognitive decline and you haven’t planned ahead, a Texas court could appoint someone to make decisions for you. That person may not be who you would have chosen. A San Antonio estate planning attorney can help you take control of that decision before it is out of your hands.

What Is Guardianship in Texas?

Guardianship is a legal arrangement where a court appoints someone, called a guardian, to make personal and financial decisions for a person who can no longer make those decisions for themselves. This can happen due to a serious accident, a stroke, a progressive illness like dementia, or any condition that leaves someone mentally or physically unable to manage their own affairs.

By law, if no prior planning has been done, a court will determine who is best suited to serve as guardian. The court has the authority to appoint someone it believes serves the best interest of the incapacitated person. This includes someone you might not have chosen yourself.

Can You Name Your Own Guardian in Advance?

Fortunately, you can name your own guardian. Doing so is one of the most important steps in any estate plan. This is called a Declaration of Guardian, and it is specifically authorized under Texas Estates Code Section 1104.

A Declaration of Guardian allows you to:

• Choose the people you want to cover guardianship of your person and guardianship of your estate

• Name a backup guardian in case your first choice is unable or unwilling to serve

• Disqualify specific individuals you do not want to be your guardian

While courts are not required to follow your designation, they give it serious weight. In practice, judges rarely override a properly executed Declaration of Guardian unless there is a compelling reason to.

How Is a Declaration of Guardian Different From a Power of Attorney?

Many people assume a power of attorney covers everything. A durable power of attorney does allow someone you trust to manage financial matters on your behalf, and a medical power of attorney covers healthcare decisions. These documents can go a long way toward keeping guardianship proceedings out of court entirely.

However, powers of attorney are not always enough. If someone challenges your capacity or if your documents are not properly drafted, a court may still need to step in. That is where a Declaration of Guardian becomes valuable. It tells the court who you want, in your own words, before the situation ever reaches a judge.

Having both a Declaration of Guardian and properly executed powers of attorney in place gives you the strongest possible protection.

What Happens if You Do Not Plan Ahead for Guardianship?

Without any planning documents, Texas courts follow a "statutory order of priority" when appointing a guardian. Spouses and adult children are typically considered first. This makes sense, but it’s not always ideal. Family members may disagree. Someone may challenge the appointment. The family member the court appoints may not be who you would have preferred to manage things. A distant relative or even a professional guardian appointed by the court could end up making decisions about your care, your home, and your finances.

Guardianship proceedings can also be expensive and time-consuming for your family. Planning ahead is not just about your preferences. It is also about protecting the people you love from a difficult and potentially costly legal process.

Contact a San Antonio, TX Guardianship Lawyer Today

 You don’t have to leave the guardianship decision to a court in 2026. Contact a San Antonio estate planning attorney today. At The Law Office of Ryan C. Moe, PLLC, our attorneys bring over 20 years of legal experience to every client relationship, helping Texas families put the right protections in place before crises happen. Call The Law Office of Ryan C. Moe, PLLC at 210-861-6000 to speak with an attorney about your estate planning needs.