Reported / Citable
Background
David Stewart (Father) filed an application in Coryell County, Texas, to be appointed permanent guardian of the person of his adult son Nathan Daniel Stewart, whom Father alleged was incapacitated. The Estates Code requires that citation on a guardianship application be personally served on the proposed ward if he or she is twelve years of age or older. Tex. Est. Code § 1051.103(a)(1). The officer’s return of service showed that Father himself — not Nathan — was personally served with the guardianship application and citation. Nevertheless, the trial court appointed an attorney ad litem for Nathan, who appeared and filed an answer, and the court proceeded to a final hearing spanning two sessions in June and July 2024.
Nathan’s mother, Barbra Klecka (Mother), had also filed her own separate guardianship application and Nathan was personally served with that application. But he was never served with Father’s application. After the final hearing concluded, the trial court signed an order appointing Father as permanent guardian of Nathan’s person — despite Nathan having submitted a handwritten statement of preference naming Mother. Mother appealed, arguing that the failure to personally serve Nathan with Father’s guardianship application deprived the trial court of personal jurisdiction, making the order void.
The Court’s Holding
Chief Justice Johnson, writing for a unanimous panel (Johnson, C.J., Smith, J., and Harris, J.), vacated the trial court’s order and remanded. The court held that the failure to personally serve Nathan with Father’s guardianship application was a complete absence of service, not a correctable technical defect, and that it deprived the trial court of personal jurisdiction over Nathan with respect to that application.
Father argued that Nathan’s service with Mother’s application was sufficient, because Nathan had been personally served with at least one guardianship application before the final order. The court disagreed: Mother and Father are distinct parties seeking different relief, and each application must independently satisfy the service requirements of § 1051.103(a)(1). The court also rejected the argument that Nathan’s attorney ad litem could waive the service defect, pointing to Tex. Est. Code § 1051.055(e), which expressly prohibits an attorney ad litem from waiving personal service of citation on behalf of a proposed ward, and § 1051.105, which permits only parties other than the proposed ward to waive receipt of service in writing.
Father invoked In re Guardianship of Fairley, 650 S.W.3d 372 (Tex. 2022), in which the Texas Supreme Court found personal jurisdiction notwithstanding technical service defects, because the proposed ward had been personally served with both competing guardianship applications and had participated through counsel. The court distinguished Fairley on its central premise: the supreme court’s holding rested on the undisputed fact that the proposed ward in that case was personally served with every application at issue. Here, Nathan was never personally served with Father’s application at all. A complete absence of service is not the kind of technical irregularity that Fairley excuses; it is a jurisdictional defect that renders the resulting order void.
Key Takeaways
- Personal service on the proposed ward (age 12 or older) is a statutory prerequisite to jurisdiction under Tex. Est. Code § 1051.103(a)(1); failure to accomplish such service with respect to a specific guardianship application deprives the court of personal jurisdiction to grant relief under that application, and any order entered is void.
- An attorney ad litem appointed for the proposed ward cannot waive personal service, even by appearing, filing an answer, and participating fully in the hearing. Section 1051.055(e) forecloses that argument.
- In re Guardianship of Fairley does not save orders entered without any service: the supreme court’s technical-defect analysis presupposes that the proposed ward was in fact personally served with the application at issue. Where service never occurred, Fairley does not apply.
- Service on the proposed ward of one party’s guardianship application is not a substitute for service of a separate, competing application filed by a different party. Each application independently requires personal service under § 1051.103(a)(1).
Why It Matters
Guardianship of Stewart delivers a clear reminder for Texas probate and estate practitioners: confirm, before the final hearing, that the proposed ward was personally served with your client’s specific guardianship application. It is not enough that another party’s competing application was served, that the proposed ward appeared through an attorney ad litem, or that the ward participated in the proceeding. A gap in service of one application exposes the entire proceeding under that application to a successful void-order attack on appeal — even after a full evidentiary hearing.
For practitioners representing petitioners, the practical takeaway is straightforward: verify the officer’s return before going to final hearing. When service is defective, seek an alias citation and re-serve rather than relying on the attorney ad litem’s participation to cure the defect. For attorneys representing proposed wards or objecting family members, this decision confirms that a service challenge is jurisdictional and therefore cannot be waived — a powerful appellate tool when the trial court appointed the wrong guardian or ignored the ward’s expressed preference.