When a parent files for guardianship over an adult child with an intellectual disability, the hardest part is usually not the law — it is the family. One parent sees a vulnerable person who needs protection. The other sees a capable adult being unfairly restricted. When the medical experts also disagree, the probate court has to sort through conflicting evidence and decide two things: whether to impose a guardianship at all, and if so, how much authority the guardian should have.
That second question is the one we want to focus on. A finding of total incapacity gives the guardian full authority over the ward. A finding of partial incapacity limits the guardian to specific areas and leaves the ward in charge of everything else. The difference matters enormously — it controls whether the ward keeps the right to drive, vote, marry, sign contracts, and decide where to live.
The El Paso Court of Appeals addressed this issue earlier this year in In re Guardianship of Lopez-Reta, No. 08-25-00073-CV (Tex. App.—El Paso Jan. 14, 2026, no pet.) (mem. op.). The case involved a 21-year-old woman with an intellectual disability, divorced parents who disagreed about her capabilities, and two physicians who reached opposite conclusions about the severity of her limitations. The probate court found total incapacity. The El Paso court affirmed. The opinion is useful because it gives practitioners a clearer picture of what evidence supports a total-incapacity finding, even when the record contains real evidence to the contrary.
The Family Dispute Behind the Guardianship
In May 2023, Lorena Lopez filed an application in El Paso County Probate Court No. 2 to be appointed permanent guardian of the person — not the estate — of her 21-year-old daughter, Jelitthza Lopez-Reta. Lorena alleged Jelitthza was an incapacitated person who had been diagnosed with an intellectual disability as defined by Section 1002.017 of the Texas Estates Code. She asked the court to remove eight of Jelitthza’s rights: to make gifts of property, to drive, to execute a living will, to execute a power of attorney, to execute any legal documents or contracts, to execute a will, to marry, and to decide where she lived.
There was history behind the filing. In June 2022, Jelitthza’s father, Angel Lopez, took the couple’s three children for a visit and refused to return the two daughters. For the next eleven months, Angel reportedly cut off contact between Jelitthza and her mother. On Mother’s Day, Jelitthza called Lorena and asked to be picked up — she told her mother she no longer wanted to live with Angel because he was “too restrictive.” Lorena did not return her to Angel after that. The parents’ divorce was finalized two months before the guardianship hearing.
Angel did not file his answer and objection until October 2024, the day before the hearing. At the hearing, the probate court heard testimony from Lorena, Angel, and Raquel Lauretano — the court’s senior investigator — and considered two medical evaluations.
What the Evidence Showed About Jelitthza
Lorena testified that Jelitthza can prepare simple meals, shower, dress, do laundry, and clean her room — but she cannot use a stove unsupervised. Jelitthza graduated from high school through special education classes (she had been in special education since kindergarten or first grade) but was no longer enrolled in school. She had a cell phone and could dial 911. She knew what a $20 bill was but could not calculate change. Lorena did not believe Jelitthza could live alone, pay rent on time, grocery shop, or handle complex financial decisions. When asked if Jelitthza could function safely in society, Lorena hedged: “she does function.”
Angel saw a different daughter. He testified that he “saw [Jelitthza] as a normal child.” They were close. She could use the phone, identify family members, and remember things. With education, he believed she could drive, work a job, ride the bus, understand her pay, and live independently as an adult. Jelitthza, he said, wanted a boyfriend, a job, friends, marriage, and children of her own.
Lauretano, the court investigator, fell somewhere in the middle. Her report — required under Section 1054.151 of the Estates Code — found Jelitthza could independently bathe, dress, groom, eat, and use the restroom. She could stay home alone, but did not leave the house by herself. She needed help with transportation, scheduling, and managing medication. She had briefly bussed tables at a restaurant. She read, wrote, and did math at a third-grade level. When Lauretano explained guardianship in simple terms, Jelitthza “appeared able to understand a simple explanation, after which she agreed to the appointment of her mother as her guardian to assist her with everyday decisions.”
Lauretano recommended against full guardianship. She thought Jelitthza might be only partially incapacitated and that a Supported Decision-Making Agreement under Chapter 1357 of the Estates Code — an SDMA, in which an adult with a disability appoints a “supporter” to help with life decisions without taking the decisions away — could work as a less restrictive alternative.
The two physicians split. Dr. Andres Aristizabal, Jelitthza’s regular physician, diagnosed a moderate learning disability and found she could not make complex business decisions, manage a bank account, drive, vote, decide whether to marry, or choose her own residence — but that she could attend to basic daily living, shopping, cooking, traveling, cleaning, and consent to medical treatment. He concluded Jelitthza was partially incapacitated under Section 1002.017.
The probate court was not satisfied with one opinion and ordered an independent psychiatric evaluation. Dr. Martin Guerrero, Jr. reached the opposite conclusion. He wrote that Jelitthza “is functioning at the mental level of a child” and “is totally dependent on her mother for all support including transportation, shopping, food, clothing, and housing.” Her “poor understanding of finances places her at high risk of financial exploitation.” She could voice immediate preferences but “is unable to appreciate long-term consequences.” Guerrero concluded she lacked capacity in every one of the eleven functional areas he was asked to evaluate.
The probate court found, by clear and convincing evidence, that Jelitthza was an incapacitated person and that alternatives and supports and services had been considered but were not feasible. By a preponderance of the evidence, it found her totally without capacity to care for herself or manage her property. It appointed Lorena as permanent guardian with full authority. Angel appealed.
How Guardianship Works Under the Texas Estates Code
To understand the appeal, we have to start with what the probate court actually has to find. The Estates Code does not let a judge impose a guardianship as a matter of family preference. Under Section 1001.001(a), guardianship can be imposed only “as necessary to promote and protect the well-being of the incapacitated person,” and the court must appoint a guardian with “either full or limited authority over an incapacitated person as indicated by the incapacitated person’s actual mental . . . limitations.”
Before appointing anyone, Section 1101.101(a)(1) requires the court to find by clear and convincing evidence that: (A) the proposed ward is an incapacitated person; (B) guardianship is in the proposed ward’s best interest; (C) the appointment will protect the proposed ward’s rights or property; (D) alternatives to guardianship have been considered and determined not feasible; and (E) available supports and services have been considered and determined not feasible.
Section 1002.017 defines an “incapacitated person” as an adult who, because of a mental condition, is “substantially unable to” (1) provide food, clothing, or shelter for themselves; (2) care for their physical health; or (3) manage their own financial affairs. That definition matters at two different stages — and it is here that the case turns.
Once a person is found incapacitated under that “substantially unable” standard, the court still has to make a separate finding by a preponderance of the evidence under Section 1101.101(a)(2)(D) about how much capacity the person actually lacks. The choice is binary: either the person is “totally without capacity” (subsection (i)), or the person “lacks the capacity to do some, but not all, of the tasks” required to care for themselves (subsection (ii)). That choice then dictates the guardian’s authority. Total incapacity allows full guardianship under Section 1101.151(a). Partial incapacity allows only a limited guardianship under Section 1101.152(a).
The Estates Code defines the alternatives and supports and services the court must consider. Section 1002.0015 lists nine specific alternatives — including medical powers of attorney, durable powers of attorney, joint bank accounts, management trusts, special needs trusts, and “establishment of alternate forms of decision-making based on person-centered planning,” which is the catch-all for arrangements like SDMAs. Section 1002.031 defines supports and services as available resources that “enable an individual to” meet needs for food, clothing, shelter, physical or mental health, financial affairs, or personal decisions about residence, voting, driving, and marriage.
The Total-vs.-Partial Question and How the Court Resolved It
Angel’s first issue was that there was not enough evidence to support a finding of “total” incapacity — only partial incapacity. The El Paso court started by noting something practitioners should pay attention to: no Texas appellate court has definitively ruled on what “totally without capacity” means under Section 1101.101(a)(2)(D)(i). The court treated total versus partial incapacity as a question about the severity of incapacitation, anchored to the Section 1002.017 definition: how substantially unable is the proposed ward to provide her own food, clothing, and shelter, care for her health, and manage her financial affairs?
On that record, the court found more than a scintilla of evidence supporting total incapacity. Three witnesses — Lorena, Guerrero, and Lauretano — agreed Jelitthza could not live independently. All three agreed she could not handle complex financial transactions. Guerrero’s report concluded she was totally dependent on her mother “for all support including transportation, shopping, food, clothing, and housing,” and that her financial understanding put her at “high risk of financial exploitation.” She did not understand her own medical needs.
That is the legal sufficiency point. On factual sufficiency, the court acknowledged what we already know — Aristizabal said partial, Lauretano leaned partial, Angel said normal. But under the abuse-of-discretion standard, conflicting evidence does not get a guardianship finding reversed. The Texas Supreme Court has emphasized that in “guardianship proceedings especially, the heavy responsibility for determining the best resolution of fundamental and emotional issues lies necessarily within the trial court’s sound discretion.” In re Thetford, 574 S.W.3d 362, 380 (Tex. 2019).
The court cited two earlier cases on similar facts. In Guardianship of N.P., No. 02-19-00233-CV, 2020 WL 7252322 (Tex. App.—Fort Worth Dec. 10, 2020, pet. denied) (mem. op.), the proposed ward could perform some basic tasks but was still found totally incapacitated. And in Guardianship of A.E., 552 S.W.3d 873 (Tex. App.—Fort Worth 2018, no pet.), the Fort Worth court affirmed total incapacity where the evidence showed an inability to engage in higher-level thinking, even when some daily-living tasks were intact. Both cases were aligned with the conclusion the trial court reached here.
The takeaway is straightforward: the existence of partial-incapacity evidence in the record does not, by itself, get a total-incapacity finding reversed on appeal. The trial court gets to weigh the witnesses. If the evidence supporting total incapacity rises above a scintilla and the evidence against it is not so overwhelming as to make the finding “clearly wrong or manifestly unjust,” it stands.
Why the SDMA Was Not a Feasible Alternative
Angel’s second issue was procedural in flavor but practical in effect — he argued the probate court did not adequately consider alternatives to guardianship and supports and services that would have made full guardianship unnecessary. The court of appeals walked through this carefully because it is the issue families lose most often.
Because Lorena only sought guardianship over Jelitthza’s person — not her estate — most of the financial alternatives in Section 1002.0015 dropped out. Angel did not identify which of the remaining statutory alternatives would actually have worked for Jelitthza. The only alternative anyone seriously discussed at the hearing was Lauretano’s SDMA recommendation.
And this is the part to underline. The court held — citing Guardianship of A.E., 552 S.W.3d at 889 — that an SDMA is not feasible when the proposed ward does not have the capacity to make decisions in the first place. The whole point of an SDMA is that the adult with a disability retains decisional authority and just gets help understanding options and consequences. If the proposed ward cannot understand options and cannot appreciate consequences, the alternative collapses. Given Jelitthza’s total incapacity, the SDMA was not feasible as a matter of law.
The same logic took out the other Section 1002.0015 alternatives that nobody had even raised. Powers of attorney, declarations for mental health treatment, joint bank accounts, designation of a future guardian — all of them require the ward to be able to execute the document and understand its consequences. If she cannot, the alternative is not feasible. That is the practical rule that comes out of Lopez-Reta and the Mandell v. Breland decision it cites, 717 S.W.3d 474, 493 (Tex. App.—Houston [14th Dist.] 2025, no pet.).
Supports and services failed for the same reason. The court quoted Guardianship of A.E.: “All the evidence at the hearing established that no amount of resources would enable A.E. to meet her own needs . . . . Her needs and health must be managed for her because she cannot understand her options to make those decisions for herself, even when they are explained to her.” 552 S.W.3d at 884. The same was true of Jelitthza.
The Takeaway
For families involved in a contested guardianship of an adult child with an intellectual disability, Lopez-Reta draws the lines clearly. Conflicting medical opinions and a parent’s belief that the child can function independently are not enough on their own to defeat a total-incapacity finding. The trial court gets to weigh the evidence, and on review, only legally and factually insufficient evidence will reverse it.
The harder lesson is about alternatives. If you are opposing a full guardianship, “the court should have considered an SDMA” is not enough. The case law is now clear that an SDMA — and most of the other Section 1002.0015 alternatives — are not feasible when the proposed ward lacks the capacity to enter into them and understand their consequences. To make alternatives an issue on appeal, the family member opposing guardianship has to identify the specific alternative, show how it would actually meet the ward’s needs, and explain why the ward has enough capacity to make it work. None of that happened in Lopez-Reta.
From the proposed guardian’s side, the case is a reminder that thorough medical evidence — particularly an evaluation that addresses each functional area the court is being asked to remove rights over — is what carries the day. Guerrero’s report did exactly that, and it is the document the court of appeals returned to repeatedly when affirming.
Our Dallas Probate Attorneys provide a full range of probate services to our clients, including helping with contested guardianship proceedings involving adults with intellectual disabilities. Probate is what we do. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process.We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
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