By Austin Senior Advisor Care Team · July 31, 2026
Your mother has dementia, there is no power of attorney, and she will not sign one. Here is what Texas law actually allows, what the Travis County probate courts require, and the steps most Austin families skip.
The moment this stops being theoretical
For most families the question arrives in a hallway. A discharge planner at an Austin hospital asks who has authority to sign, or an assisted living director slides an admission agreement across a desk and asks for the responsible party. And you realise that nobody ever signed anything. Your father handled his own affairs until the week he didn't.
This is the most common legal gap we see, and it is almost never the result of neglect. Powers of attorney get put off because signing one feels like an admission. Then a stroke, a fall, or a slow slide into dementia closes the window, and a family that would have handled everything cooperatively is suddenly told they have no legal standing at all.
What follows is not legal advice, and nothing here substitutes for an hour with a Texas elder law attorney. It is a map of what the law actually offers, in order of how much it takes away from your parent, because Texas courts are required to work down that same ladder before they hand anyone control.
Why the power-of-attorney window closes, and how narrow it really is
Texas uses two separate documents, and families routinely believe they have both when they have one. A durable power of attorney covers money: banking, bills, the house, insurance, taxes. A medical power of attorney covers health care decisions and generally takes effect only when a physician certifies that the person can no longer make those decisions themselves. Neither one covers the other's territory.
Both require that your parent have capacity at the moment of signing. That is the part families get wrong in the hopeful direction and the fearful direction at once. A dementia diagnosis does not automatically end the ability to sign. Capacity is decision-specific and it fluctuates, and plenty of people in the early and moderate stages can still understand what a power of attorney does and who they are choosing. Many attorneys will meet a client in the morning for exactly this reason.
But capacity also does not come back. If your parent can still hold this conversation, the single highest-value thing you can do this week is get an appointment, not research guardianship. A signed power of attorney costs a fraction of a court proceeding, takes days rather than months, and leaves your parent choosing their own decision-maker instead of a judge doing it.
There is a harder version of this problem, and it deserves saying plainly: sometimes a parent has capacity and simply refuses. That is their right. A competent adult in Texas is allowed to make choices their children consider unwise, including refusing help. Refusal is not incapacity, and a court will not treat it as such.
The medical decision your family may already be allowed to make
Before assuming you need a court, check whether you already have authority you did not know about. Texas has a surrogate consent statute, Health and Safety Code Section 313.004, that most families have never heard of and many are quietly operating under already.
It applies when an adult patient in a hospital, a nursing home, or under a home and community support services agency is comatose, incapacitated, or otherwise unable to communicate. If there is no medical power of attorney and no guardian, an adult surrogate may consent to medical treatment, working down a priority list: the patient's spouse; an adult child who has the waiver and consent of all other qualified adult children to act as sole decision-maker; a majority of the reasonably available adult children; the patient's parents; and finally the person the patient clearly identified before losing capacity, the nearest living relative, or a member of the clergy.
The statute also says the treatment consented to must be based on knowledge of what the patient would want, where that is known. It excludes voluntary inpatient mental health services and electro-convulsive treatment. And any dispute over who has the right to act as surrogate can be resolved only by a court with jurisdiction over guardianship proceedings.
Understand what this does and does not do. It gets a surgery consented to. It does not let you move your mother out of her house, sell anything, access a bank account, or sign a lease at an assisted living community. Families often coast on Section 313.004 through a hospital stay and then hit a wall at discharge, when the decisions stop being medical and start being everything else.
The ladder Texas requires you to climb down first
Texas law does not treat guardianship as one option among several. It treats it as the last one. Before a court can appoint a guardian, Estates Code Section 1101.101 requires it to find by clear and convincing evidence that alternatives to guardianship have been considered and determined not to be feasible, and that supports and services available to the proposed ward have been considered and determined not to be feasible. That is a separate finding from incapacity, and it is a finding you have to help build.
One of those alternatives is uniquely Texan. The Supported Decision-Making Agreement Act, Estates Code Chapter 1357, lets an adult with a disability voluntarily authorise a supporter to help them understand options, gather records, make sense of information, and communicate their decisions, while the adult keeps the legal right to decide. It is designed for the person who can still decide but cannot navigate alone. Texas was the first state to put this in statute, and it is badly underused.
Others are ordinary and often sufficient. A Social Security representative payee can manage a benefit check without any court involvement. A joint account, used carefully and with clear intent, can keep utilities paid. Home and community based services, including what may eventually come through STAR+PLUS, sometimes close the practical gap that made guardianship look necessary in the first place.
Keep a record as you try these. Which one you attempted, when, and why it failed. That record is what a judge is asking for when the statute says alternatives were considered and determined not feasible, and it is the difference between a hearing that moves and one that gets reset.
What filing in Travis County actually involves
Travis County is one of the counties with dedicated statutory probate courts, which means guardianship here is heard by judges who do this all day. Probate Court No. 1 sits on the second floor at 200 W. 8th St. in downtown Austin, reachable at (512) 854-9258. Probate Court No. 2 is on the fourth floor of the same building at (512) 854-5512. Cases are e-filed through eFileTexas.gov. Neighbouring counties are structured differently, so if your parent lives in Williamson, Hays, or Bastrop County, call that county clerk before assuming the process matches Austin's.
The courts publish their own forms, and reading them before you hire anyone is time well spent. The Travis County probate site posts a Health Care Provider's Certificate of Medical Examination, a Guardianship General Information Form, a Bill of Rights for Persons under Guardianship, and separate court instruction packets for guardian of the person, guardian of the estate, and both.
That medical certificate has a timing rule that derails more applications than any other detail. Under Estates Code Section 1101.103, the letter or certificate must be dated no earlier than the 120th day before the application is filed, and it must be based on an examination performed within that same 120-day window. A physician cannot summarise an older exam in a fresh letter. If your parent's neurologist appointment is three months out, that appointment is now on your filing critical path.
Two more requirements surprise families. The court appoints an attorney ad litem to represent the proposed ward's interests, including their expressed wishes, under Section 1054.001, and that attorney must interview your parent before the hearing. Your parent gets their own lawyer, whose job may be to oppose you. And under Section 1104.003, a proposed guardian has to complete a training course covering a guardian's responsibilities, the alternatives to guardianship, the supports and services available, and the ward's bill of rights. It is provided free online. Applicants who are not Texas attorneys, certified guardians, or corporate fiduciaries also go through a criminal background check.
Guardianship is not one switch
Families picture guardianship as a single grant of total control. Texas does not work that way, and the distinctions matter for what you will be signing up to do for years.
Guardianship of the person covers where someone lives and their care. Guardianship of the estate covers money and property. They are separate appointments, and one person does not have to hold both. If your father has a modest fixed income and no property, you may need only guardianship of the person, which carries far lighter reporting.
The court is also required to tailor it. Section 1101.101 says the findings must state specifically whether the proposed ward lacks capacity, or lacks sufficient capacity with supports and services, to make personal decisions about residence, voting, operating a motor vehicle, and marriage. Rights not removed are retained. A person under guardianship in Texas can still hold rights a family assumed were gone.
And the case does not end at appointment. Guardians file annual reports on the person and, where there is an estate, annual accountings the court audits. Travis County also runs a Court Visitor Volunteer Program in which trained volunteers visit people under guardianship and report back to the court's investigator, so a judge has firsthand information rather than only the guardian's paperwork. The program's coordinator can be reached at (512) 854-4359. If you take this on, plan on it being an ongoing obligation, not a one-time filing.
What we cannot tell you, and what to do this month
We are not going to publish a number for what a Travis County guardianship costs or how long it takes. Court costs, the attorney ad litem's fee, your own attorney, the medical examination, and any contest all vary case to case, and no primary source publishes a reliable local average. Anyone quoting you a confident figure for Austin is guessing. Ask two or three elder law attorneys for a written estimate against your specific facts instead.
What we can say is what the sequence should be. If your parent still has capacity, get powers of attorney signed now, this month, before anything else. If they are already incapacitated and the immediate need is medical, check whether Section 313.004 already covers your family. If the need is money or housing, work the alternatives ladder deliberately and document it. Only then talk to a lawyer about filing.
For free or low-cost help, Volunteer Legal Services of Central Texas runs advice clinics at Austin-area library branches for people who meet its income and asset guidelines, and its service area covers Travis, Williamson, Bastrop, and Hays counties. It handles civil matters including wills and estate planning but not contested probate. The Area Agency on Aging of the Capital Area, at 512-916-6062, offers benefits counselling and can point you toward local resources.
If your parent is refusing help and you are trying to work out whether this is a legal problem or a care problem, start with the practical question of whether living alone is still safe, and read our overview of who helps with guardianship and money management in Austin. Very often the answer is not a courtroom.
