Understanding Texas HB 1954 and SB 746: Proposed Changes to Guardians ad Litem Appointments (Part 1)

It’s an odd-numbered year, and another session of the Texas Legislature is upon us. The legislative arm of the Texas Bar Association’s Real Estate, Probate, and Trust Law section (REPTL) is known as T-REP (the Texas Real Estate and Probate Institute). Every legislative session, T-REP proposes updates to property, probate, trust, and guardianship laws.

One such proposal is SB 746 (and its counterpart, HB 1954)—collectively referred to here as the Bill. Legislators may want to reconsider passing this Bill unless it undergoes substantial revision.

Here’s a summary of the Bill and some key concerns raised about it:

• The Bill would modify the requirements for appointing a Guardian ad Litem (GAL) in guardianship proceedings by adding the phrase “or proposed ward” after “incapacitated person.”
• T-REP’s stated justifications raise concerns when viewed through a textual and historical lens.
• Existing statutes already provide courts with the ability to appoint GALs; thus, the Bill would affect only a narrow subset of contested guardianships lacking the required Certificate of Medical Examination (CME).
• The Bill could allow courts to approve without sufficient review the appointment of GALs—court officers with official immunity and substantial influence on a proposed ward’s rights and finances.
• The Bill is drafted in a way that could lead to increased litigation.
• The Bill risks undermining the fundamental rights of proposed wards and may undo progress made in guardianship standards since the early 1990s.
• The Bill should be deferred until the next legislative session for further consideration.

Existing Law & The Proposed Change

Currently, Texas Estates Code Section 1054.051(a) states:

[T]he judge may appoint a guardian ad litem to represent the interests of an incapacitated person in a guardianship proceeding.

“Incapacitated person” means (1) a minor; (2) an adult substantially unable to care for themselves due to a physical or mental condition; or (3) someone needing a guardian to receive government funds. (Tex. Estates Code 1002.017).

The Bill would revise Section 1054.051(a) as follows:

[T]he judge may appoint a guardian ad litem to represent the interests of an incapacitated person or proposed ward in a guardianship proceeding.

“Proposed ward” means “a person alleged in a guardianship proceeding to be incapacitated.” (Tex. Estates Code § 1002.026).

For consistency, the Bill also adds “or proposed ward” to other Estates Code sections, including the definition of Guardian ad Litem in Section 1002.013.

T-REP’s Summary: A Closer Look

T-REP characterizes the Bill as a simple clarification, stating:

[The Bill] clarifies that the court may appoint a guardian ad litem to represent a proposed ward, in addition to a ward. This is intended as a clarification and not a change to existing law.

This explanation may not fully align with the statute’s text or history.

First, let’s examine the textual issue. T-REP suggests that existing law permits appointing a GAL for a “ward.” However, current law uses the term “incapacitated person,” which is legally distinct from both “ward” and “proposed ward.” See Tex. Estates Code § 1002.017 (incapacitated person), § 1002.026 (proposed ward), § 1002.030 (ward).

According to Section 1002.030, a “ward” is someone for whom a guardian has already been appointed. A “ward” typically wouldn’t require a GAL because they already have a guardian. The legal definitions confirm that a GAL is not the same as a guardian. See Tex. Estates Code § 1002.012 (guardian); § 1002.013 (guardian ad litem).

Second, let’s explore the historical side. T-REP’s justification implies that the change is simply a clarification.

However, the statutory language surrounding GALs hasn’t changed in over 30 years. It dates back to the 1990s Probate Code and remained unchanged during the transition to the current Estates Code:

Throughout this time, definitions related to “incapacitated person” have remained constant. No existing statute suggests that “incapacitated person” also includes “proposed ward.”

Given this long history of unchanged language, the principle that the Legislature meant what it said must guide interpretation, rather than assumptions based on court practices.

In fact, a recent Texas trial court acknowledged this distinction on the record:

“Courts for ages have appointed guardian’s ad litem before any determination of incapacity. … I would have to candidly say that’s what the statute says: an incapacitated person. … I think that’s maybe some legislative changes that need to be made sometime down the road.”

Contrary to the rationale offered for the amendments, the Bill introduces a significant departure from longstanding law.

More on HB 1954 and SB 746: