TBJ DECEMBER 2021 [Opinion]

In Their Best Interests

Are guardianships toxic to constitutional rights?

Written by Julie Balovich

When Britney Spears was able to speak directly to the judge who oversees her conservatorship and her speech went viral, it was the first time that many people heard the firsthand experience of a person living under guardianship.1 What Spears described was disturbing. She said she was forced to take psychoactive medication that made her feel “drunk.” She was compelled to obtain therapy with someone she did not trust. She was not allowed to remove a contraceptive device when she wanted a child. Spears summarized her complaints with devastating simplicity: “I just want my life back.”2

Spears’ story is extraordinary because of who she is (an international pop star, for those who eschew pop culture/live under a rock), but the essence of her story is not unusual. On a routine basis in our country and in our state, persons with varied mental conditions become subject to court orders that strip their control over their own lives. As described by the Texas Supreme Court, guardianships are a “court-sanctioned infringement of an incapacitated person’s right to control her own property, liberty, and life in order to promote and protect [her] well-being.”3 A form of “civil death” as that term has been used in jurisprudence,4 guardianships can terminate an adult’s constitutional rights, including the right to vote,5 marry,6 and possess guns.7 Adults under guardianship lose the right to make the ordinary everyday choices that are core to our concept of personal liberty.8

The legal justification for guardianships is the ancient doctrine of parens patriae—that the state has an obligation to be a protector for its citizens who cannot take care of themselves.8 This concept makes sense intuitively. If a person cannot access food, clothing, shelter, medical care, or manage his or her property because he or she lacks capacity to do so, society should step in. The rights-based justification for a guardianship is that a guardianship ensures equal protection for these individuals under the law. The guardian is the person with authority to ensure the ability to access essentials for the incapacitated adult, and the court has oversight to ensure that the dependent adult is not harmed.

But rights extend beyond access to tangible essentials—to agency, autonomy, and self-expression. In the American conception of civil rights, liberty is fundamental. This includes the liberty to make mistakes. Viewed in this context, guardianships should be a measure of last resort and should be narrowly tailored. In practice, the human impulse to protect the most vulnerable in our society tilts the scales in favor of full guardianships that provide maximum protection against the harm of potential bad choices.

For years, Texas courts have acknowledged that the liberty interests implicated in guardianship proceedings necessitate ‘“uniform, strict procedural safeguards to protect a person’s liberty and property interests before a court may take the drastic action of removing’ a person’s ability to make his or her own legal decisions.”10 Those safeguards include a heightened burden of proof as to the person’s incapacity and the necessity for a guardianship.11 Further, Texas law expressly requires a finding that the appointment of a guardianship will protect the rights or property of a person.12 The Legislature has adopted a policy statement of guardianships restraint by providing that authority should be granted “as indicated by the incapacitated person’s actual mental or physical limitations and only as necessary to promote and protect the well-being of the incapacitated person.”13

At the national level, a movement spurred by disability rights and elder law advocates has resulted in legislative reform in many states and the development of practical resources for practitioners who represent persons with diminished capacity.14 In 2015, the work of a committee of stakeholders in Texas resulted in omnibus legislation including the requirement that alternatives to guardianship be considered.15 Texas became the first state to codify supported decision-making, a process that supports and affirms the rights of persons with disabilities to make their own choices with the help of persons they trust.16 The legislation intended to reduce unnecessary and overly restrictive guardianships and provide better oversight of guardians.17

Has it worked? It is hard to know how many guardianships have not been filed or have not been granted as a result of the new pleading and proof requirements.18 But even with heightened procedural due process protections, the law still permits a guardianship proceeding to do more than what is actually necessary to protect a person’s rights at the time the guardianship is sought. As one example, a researcher found that 90% of guardianships in Texas terminate the right of the person to vote.19 What evidence do courts rely upon to make that determination? Is termination of all fundamental rights a necessary outcome of a guardianship?

These questions were presented recently in In the Guardianship of N.P., a case from the 2nd Court of Appeals in Fort Worth.20 In N.P., a statutory probate court granted a limited guardianship to the parents of an 18-year-old woman who had a mild intellectual disability and autism after findings that the young woman lacked capacity to make personal decisions regarding medical care, employment, and her residence based upon an uncontroverted doctor’s affidavit, a court investigator report, and her parents’ testimony.21 N.P. participated in the hearing.22 She testified that she attended school and took part in activities with people her own age and without other adult supervision.23 She worked in a grocery store and wanted to attend community college, and she expressed her appreciation for her parents’ help and guidance.24 She was not asked about marriage, voting, or driving.25 In denying a full guardianship, the trial court found insufficient evidence that N.P. lacked capacity to make decisions regarding marriage, voting, and operating a motor vehicle and also found there were alternatives to removing the right to operate a motor vehicle because she would have to fulfill requirements of Texas law to obtain a driver license.26

The parents appealed the order granting a limited guardianship, and the court of appeals reversed, holding that there was no countervailing evidence that N.P. was “capable of making significant decisions about voting, driving, and marriage” and therefore it was an abuse of discretion for the court to fail to find she was totally incapacitated.27 The court did not discuss how the record conclusively negated that N.P. would ever be able to express a choice in a presidential or local election, nor what factors a court should consider in deciding whether a person has capacity to make such a choice.28

The fact that a person has rights under the law does not mean he or she is ready to exercise them. People are often still in high school when they become adults; most will continue to rely upon their parents for a place to live, financial support, and guidance on significant decisions. But many families seek guardianships over children with disabilities when they reach the age of majority simply so they can continue to make medical and educational decisions—decisions they are otherwise barred from making because of federal and state law which confer these rights to adults. If families seek guardianship for these limited reasons, under the reasoning of N.P., it may be an all-or-nothing proposition.

The guardianship structure allows violations of ordinary civil liberties. A person under guardianship has rights, including the right to be treated with respect for their personal preferences; how a person who is dependent upon a guardian enforces those rights is murky.29 For instance, a person under guardianship may visit persons of his or her choice, unless a guardian determines it would cause substantial harm.30 No procedure is required to deny access. If the guardian makes that determination, the person under guardianship must figure out how to request a hearing to remove those restrictions.31 There is no review process that a person under guardianship is automatically entitled to participate in where he or she could express dissatisfaction directly to the court regarding how he or she is being treated.32 And if he or she did, the court’s prior finding that he or she is incapacitated and in need of protection may prejudice his or her ask. Decisions made under the guise of best interest are difficult to overcome, even when they violate a person’s dignity of choice.

Guardianships are necessary in many cases to protect the rights of persons who cannot protect themselves. But if questions remain whether guardianships must be scrutinized for overreach, Spears’ case shows that even a person with exceptional resources and an outsized media platform can be disempowered under a court-monitored situation designed to protect her.TBJ

The author would like to thank her colleagues Gabriel Sanchez, Hannah Samson, Erin Shahinfar, and Hannah Cramer for their valuable contributions to this article.


1. A conservatorship in California is the same legal structure as a guardianship in Texas.
2. Julia Jacobs & Sarah Bahr, The Britney Spears Transcript, Annotated: “Hear What I Have to Say,” New York Times (Jun. 24, 2001),
3. In re Thetford, 574 S.W.3d 362, 364 (Tex. 2019) (internal quotations omitted).
4. Texas & P. Ry. Co. v. Bailey, 18 S.W. 481, 482, 83 Tex. 19, 23-24 (“Civil death is that change in a person’s legal and civil condition which deprives him of civil rights and judical capacities and qualifications, as natural death extinguishes his natural condition.”).
5. Reynolds v. Sims, 377 U.S. 533, 555 (1964) (“The right to vote freely for the candidate of one’s choice is of the essence of a democratic society.”).
6. Obergefell v. Hodges, 576 U.S. 644, 645 (2015) (“[T]he Court has long held the right to marry is protected by the Constitution.”).
7. Tex. Const. art. 1, § 23 (“Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State. . . .”).
8. Union Pac. Ry. Co. v. Botsford, 141 US 250, 251 (“No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.”).
9. Mary F. Radford, “History of guardianship and national guardianship reform,” Ga. Guardianship and Conservatorship § 1.1 (describing English common law history as “probable origin of American guardianship laws”).
10. In re Guardianship of Hahn, 276 S.W.3d 515, 518 (Tex. App.—San Antonio 2008, no pet.); Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499 (Tex. App.—Austin 2003, no pet.)
11. To appoint a guardian, a court must 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. Tex. Estates Code § 1101.101(a).
12. Id. § 1101.101(a)(C).
13. Tex. Estates Code § 1001.001(a) (emphasis added).
14. Guardianship and Supported Decision-Making, Amer. Bar Ass’n (Aug. 16, 2021),
15. Tex. H.B. 39, 84th Leg., R.S. (2015); Tex. Estates Code § 1101.001(b)(3-a), (3-b) (an applicant for guardianship must aver whether alternatives to guardianship were considered); Tex. Estates Code § 1101.101(a)(1)(D), (E) (court must find by clear and convincing evidence that alternatives and supports and services that would avoid the need for appointment of a guardian were determined to be not feasible).
16. Tex. Estates Code ch. 1357. The National Resource Center for Supported Decision Making is a comprehensive resource on supported decision making, including legislative initiatives (accessed at
17. Texas Guardianship Reform: Protecting the Elderly and Incapacitated, Jan. 2019, p. 2 (accessed at
18. Since 2015, my law firm, law school clinical programs at the University of Texas School of Law and St. Mary’s University School of Law, and Disability Rights Texas have offered free guardianship alternative clinics to persons with disabilities and their families, often in partnership with special education and school transition programs. We know anecdotally that many families who attend the clinics would have pursued guardianships because they otherwise would not have known another option.
19. Dustin Rynders, Supporting Adults with Disabilities to Avoid Unnecessary Guardianship, Hous. Law., January/February 2018, at 26-27.
20. In the Guardianship of N.P., No. 02-19-00233-CV, 2020 WL 7252322 (Tex. App.—Fort Worth 2021, pet. denied) (mem. op.).
21. Id. at *13.
22. Id.
23. Id.
24. Id.
25. Id.
26. Id.
27. Id. at *2 n.3. Most statutory probate courts promulgate their preferred version of this form on their website. See, e.g., Physicians_Certificate_Medical_Examination.pdf.
28. The Texas Election Code defines a qualified voter as one who has not been determined by a final judgment of a court exercising probate jurisdiction to be “totally mentally incapacitated or partially mentally incapacitated without the right to vote.” Tex. Elec. Code § 11.002 (West). The form “Physician Certificate of Medical Examination” requires a doctor to check off a box answering yes or no whether the proposed ward is able to “initiate and make responsible decisions concerning himself or herself” as to an itemized list of activities including “vote in a public election.”
29. Tex. Estates Code § 1151.351 “Bill of Rights for Wards.”
30. Id. § 1151.351(b)(16).
31. Id.
32. Id. Ch. 1163 (setting forth the annual reporting process, which does not require a hearing and may be satisfied based upon a sworn statement by the guardian).

Dominique BoykinsJULIE BALOVICH
manages the guardianship practice at Texas RioGrande Legal Aid.

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