How to get legal guardianship or Power of Attorney?

UPDATED: Oct 1, 2022

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How to get legal guardianship or Power of Attorney?

I was wondering the process of obtaining legal guardianship of an adult who is mentally disabled. My brother is currently incarcerated. He is due to be released in January. I need to have a psychiatric evaluation completed but because I am not a legal guardian it cannot be done. I am not his power of attorney and he refuses to sign the form allowing me to become one which entitles me to obtain his medical records. He is combative, non-compliant, and is schizophrenic. My goal is to have him in a long term residential facility upon his release because he is not able to live with others or by himself. What is the process, specifically in obtaining a Power of Attorney or legal guardianship

Asked on September 7, 2017 under Estate Planning, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

You cannot force him to sign a power of attorney....that can only be obtained by the consent of the person.
However, you can seek a guardianship if there is absolutely no way for him to live on his own.  Texas recently revamped it's guardianship statutes....and it really tighted up the requirements for obtaining guardianships and it requires the court to seek the least restrictive options prior to granting the guardianship.
If you think there is no other option, then you would file an application for guardianship in the probate court in the county where your relative resides.  From there, you will need to get your case set for a hearing so that the judge can being putting measures in place to arrange for your relative to be subject to your care.

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