Most parents assume the custody fights end when a child turns eighteen. That isn’t always true. When an adult child can’t manage his own affairs, divorced parents can end up back in court, this time fighting over who gets appointed guardian. The stakes are the same as a custody case: medical care, where the child lives, and who makes the day-to-day decisions.
In those fights, most of the attention goes to who would make the better guardian. But the process matters too. Before a Texas court can appoint a guardian for anyone, the person who would lose his rights has to be personally served with the application. So what happens when two parents file competing applications and the proposed ward is served with only one of them? Is it enough that he had a court-appointed lawyer who showed up and defended him?
In In the Guardianship of Nathan Daniel Stewart, No. 10-24-00286-CV (Tex. App.—Waco June 25, 2026) (mem. op.), the Waco Court of Appeals had to decide whether a guardianship order could stand when the adult son was never personally served with the application of the parent who won.
What Happened in the Stewart Guardianship
Nathan Daniel Stewart is the adult son of David Stewart and Barbra Klecka. On January 2, 2024, David filed an application in the County Court of Coryell County asking to be appointed permanent guardian of Nathan’s person. He asked the court to issue citation for both Nathan and Barbra.
Barbra was personally served. She filed a pro se answer on January 12, 2024, denying the allegations. On January 18, she filed an objection through a lawyer. She argued that Nathan was not incapacitated, and that even if he needed a guardian, Nathan would object to his father being appointed.
Nathan’s service went wrong. A citation issued in his name, but the officer’s return of service said that “David Stewart” had been personally served with the application and citation — not Nathan. Meanwhile, David had asked the court to appoint an attorney ad litem for Nathan, and the court did so on January 19, 2024. The attorney ad litem filed an answer on Nathan’s behalf on January 29.
The final hearing started on June 3, 2024, and the court continued it to July 12. In the meantime, on July 1, Barbra filed her own application asking to be appointed guardian of Nathan’s person and estate. This time Nathan was personally served, on July 10. The hearing wrapped up two days later. Nathan’s attorney ad litem appeared for him at both sessions, and nothing in the record showed that Nathan himself was in the courtroom.
After the hearing, the judge emailed the lawyers. He found that Nathan “is not competent and that a guardian must be appointed over his person,” but that a guardian of Nathan’s estate wasn’t needed at that time. He also wanted Nathan to keep “significant contact” with both parents, so he ordered everyone to confer and try to agree on a co-guardianship.
They couldn’t agree. On July 29, Barbra filed a handwritten statement from Nathan, dated July 25, saying he wanted his mother to be his guardian. On August 14, 2024, the court signed an order appointing David as permanent guardian of Nathan’s person anyway. Barbra appealed.
Barbra raised four issues, but the court only needed one. Nathan was never personally served with his father’s application. Did the trial court ever have the power to appoint David over him?
Why the Proposed Ward Has to Be Personally Served
To understand why service mattered so much here, we first have to look at what gives a court power over a person in the first place. A court needs two kinds of jurisdiction to issue a binding order. It needs subject-matter jurisdiction over the type of case, and it needs personal jurisdiction over the person it is trying to bind. A county court can have full authority to hear guardianship cases and still have no power over a particular proposed ward.
Personal jurisdiction has two parts. The person has to be subject to the court’s authority, and the party bringing the case has to invoke that authority by properly serving him. Service isn’t a formality. It is what gives the court power over the person being served. Without it, an order against that person doesn’t bind him.
Chapter 1051 of the Texas Estates Code sets the service rules for guardianship cases, and it treats the proposed ward differently from everyone else. Section 1051.103(a)(1) says the sheriff or other officer “shall personally serve citation to appear and answer an application for guardianship on . . . a proposed ward who is 12 years of age or older.” That means a deputy or constable hands the papers to the person himself. Mailing doesn’t count, and handing the papers to a parent doesn’t count either.
Most parties can give up the right to be served. The proposed ward can’t. Section 1051.105 allows “[a] person other than the proposed ward” who is entitled to notice or personal service to waive it in writing, either in person or through an attorney ad litem. The proposed ward is carved out on purpose. Section 1051.055(e) closes the other door: except as provided by Section 1051.105, “an attorney ad litem may not waive personal service of citation.” So the ward’s court-appointed lawyer can’t waive it for him either.
The reason is simple. A guardianship can take away a person’s right to decide where he lives, what medical care he gets, and how his money is spent. The Legislature decided that the person facing that loss has to be told about it directly, not just through a lawyer the court picked for him.
How the Court Analyzed the Missing Service
David appeared to concede that Nathan was never personally served with his application. He made two arguments for why it didn’t matter.
First, he argued that service of Barbra’s application was enough, because Nathan was personally served with it before the court signed any order. The court rejected that. As the court put it, “Mother and Father are different parties, and their guardianship applications seek different relief.” Barbra was asking to be appointed guardian. David was asking to be appointed guardian. Serving Nathan with his mother’s request didn’t tell him the court was being asked to put his father in charge. So Nathan had to be personally served with both. The court compared the situation to In re C.T.F., 336 S.W.3d 385 (Tex. App.—Texarkana 2011, no pet.), where a trial court had no authority to act on intervenors’ petition that was never served on the defendant, even though the original divorce petition had been properly served on him.
Second, David argued that the attorney ad litem’s participation cured the problem. He relied on the Texas Supreme Court’s decision in In re Guardianship of Fairley, 650 S.W.3d 372 (Tex. 2022). The Waco court agreed that objections to personal jurisdiction can usually be waived, but explained that Chapter 1051 doesn’t let a proposed ward waive personal service. It pointed to Sections 1051.105 and 1051.055(e), and to an older Texarkana case holding that “[t]he Probate Code implies that a proposed ward may not waive jurisdictional procedures.” In re Guardianship of Erickson, 208 S.W.3d 737 (Tex. App.—Texarkana 2006, no pet.). The court then relied on Gauci v. Gauci, 471 S.W.3d 899 (Tex. App.—Houston [1st Dist.] 2015, no pet.), for the rule that failing to personally serve a proposed ward with a guardianship application deprives the court of jurisdiction.
That left Fairley, which is the case guardianship lawyers usually reach for when service goes wrong. In Fairley, the Supreme Court held that the trial court did have personal jurisdiction over the proposed ward despite “technical defects in service,” because it was undisputed that the ward was personally served with the applications, he entered a general appearance and took part in the case through his attorney ad litem, and the challenger never showed that any problem with the method of service rose to a due-process violation. The Supreme Court reasoned that Section 1051.055(e) doesn’t “prohibit a general appearance and waiver of technical service defects when the proposed ward has been served and has opted through his attorney to submit to the court’s jurisdiction.”
That is the key distinction. In Fairley, the ward was served — the only question was whether service was done perfectly. In Stewart, Nathan was never served with his father’s application at all. As the Waco court said, “the complaint in this case is not about a technical defect in service but about a lack of service altogether.” A lawyer’s appearance can waive a flaw in service that actually happened. It can’t stand in for service that never happened.
Because Nathan was not personally served with his father’s application before the order was signed, the trial court lacked personal jurisdiction over him, and the order appointing David was void. The court vacated it and sent the case back to the trial court. Since that issue decided the appeal, the court didn’t reach Barbra’s other three issues.
The Takeaway
In a Texas guardianship case, the proposed ward has to be personally served with every application asking the court to appoint someone over him. Serving him with a competing application doesn’t count, and neither does having his attorney ad litem show up and fight the case. The ward can’t waive service, and his attorney ad litem can’t waive it for him.
Stewart shows what it costs to get this wrong. The parents went through a final hearing held over two sessions, a court-ordered attempt at a co-guardianship, and a final order — and all of it was wiped out on appeal because one return of service showed the wrong person was served. If you are filing a guardianship application, read the officer’s return as soon as it’s filed and make sure it shows the proposed ward himself was served. If another family member files a competing application, make sure the ward is served with that one too. And if you are on the other side of a guardianship you think was entered without proper service on the ward, the order may be void, not just wrong.
Our Corpus Christi Probate Attorneys provide a full range of probate services to our clients, including helping with guardianship applications, service on the proposed ward, and contested guardianships between family members. 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 that we can use to support and guide you with probate and estate matters. Call us today for a FREE consultation.
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