In Re Guardianship of Jelitthza Lopez-Reta v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
————————————

No. 08-25-00073-CV
————————————

In Re Guardianship of Jelitthza Lopez-Reta

On Appeal from the Probate Court No 2
El Paso County, Texas
Trial Court No. 2023-CGD00082

M E MO RA N D UM O PI NI O N

Appellant Angel Lopez appeals the probate court’s order designating Appellee Lorena

Lopez as guardian of the person over their daughter, Jelitthza Lopez-Reta. Angel asserts two issues

on appeal. First, he argues that the probate court erred in finding that Jelitthza is totally

incapacitated under § 1101.101 of the Texas Estates Code; See Tex. Est. Code Ann.

§ 1101.101(a)(2)(D)(i). Second, he contends that there was insufficient evidence to support the

probate court’s finding that it considered alternatives, including available supports and services,

that would eliminate the need for guardianship, and that such alternatives were infeasible. See id.

§1101.101(a)(1)(D)-(E). We affirm.
I. BACKGROUND

In May 2023, Lorena filed her “Application for the Appointment of Permanent Guardian

of the Person Only” seeking to be named guardian of her 21-year-old daughter Jelitthza. In her

application, Lorena alleged that Jelitthza is an incapacitated person who was previously diagnosed

with an intellectual disability, as defined by § 1002.017 of the Texas Estates Code. See id.

§ 1002.017. She requested that the probate court remove the following rights from her daughter:

(1) to make any gifts of real or personal property; (2) to drive and obtain a driver’s license; (3) to

execute a living will; (4) to execute a power of attorney; (5) to execute any and all legal documents

or contracts; (6) to execute a last will and testament; (7) to marry; and (8) to determine and make

decisions regarding residence. She also asserted that alternatives to guardianship as well as

available supports and services were considered and that no feasible alternatives or supports would

eliminate the need for a guardianship.

In October 2024, the day before the hearing on the application, Angel filed his answer,

general denial, and objection to the application. See id. § 1055.001(a)(2) (“any person” has the

right to “appear and contest a guardianship proceeding or the appointment of a particular person

as a guardian”). The probate court held a hearing, heard testimony and considered evidence as well

as argument of counsel.

II. EVIDENCE BEFORE THE PROBATE COURT

Angel, Lorena and Raquel Lauretano, the court appointed investigator, testified at the

hearing. 1 Lauretano provided findings of her investigation of Jelitthza. Also admitted into evidence

were two medical evaluations of Jelitthza from her physician and a psychiatrist.

1
Lorena and Angel’s divorce was finalized two months prior to the hearing.

2
A. Lorena’s testimony

Lorena testified that Jelitthza has intellectual disabilities. Jelitthza can prepare simple

meals on her own but cannot use a stove unsupervised. She can shower, use the toilet, and dress

herself, and can also perform various housekeeping duties such as laundry and cleaning her room.

She was enrolled in special education classes and graduated from high school but is no longer

enrolled in any school. 2 Jelitthza owns a cell phone and can use it to dial 911. Lorena testified that

Jelitthza is not currently on any type of medication, although she asks her mother’s opinion when

she needs to take medicine. When asked if she had tried any other alternatives to guardianship, she

said she had not. Lorena was asked if she had ever explored the possibility “of making an

agreement with Jelitthza that” would enable her to make decisions on Jelitthza’s behalf. She said

she was unsure how much of that discussion Jelitthza really understood. When asked if Jelitthza

can function “safely in society” Lorena responded, “she does function.”

With the exception of an 11-month period during which she lived with Angel, Jelitthza has

always lived with Lorena and Lorena does not believe that she can live alone. 3 According to

Lorena, Jelitthza would not be able to pay her rent timely and while Jelitthza knows that things

have to be paid for generally, she does not know “the amounts or when they need to be paid.”

2
Lorena stated that Jelitthza was first enrolled in special education classes beginning in kindergarten or first grade.
3
The court investigator’s report details that this stay with Angel was the impetus for Lorena’s petitioned for
guardianship in the first place:

Lorena Lopez decided to petition the court for guardianship of her daughter . . . due to conflicts with
her estranged husband. She reports that in or about June 2022, her husband took their three children
for a visit and refused to return their two daughters to her care (reportedly only returning their son).
The proposed ward initially expressed a desire to remain with her father; however, he reportedly
refused to allow contact between the proposed ward and her mother for the following 11 months.
The proposed ward then contacted her mother on Mother’s Day . . . asking for her to pick her up so
that they could have a meal together. Ms. Lopez did not return her daughter to Mr. Lopez after that
date, as the proposed ward expressed that she no longer wished to live with her dad, as he was too
restrictive. However, the proposed ward has reportedly maintained contact with her father since
May.

3
Lorena also does not believe that Jelitthza (if she were living alone) would be able to go to the

grocery store and buy food. Jelitthza must be reminded to take baths. Lorena stated that Jelitthza

is unable to make complex decisions involving her finances 4 and contracts.

B. Angel’s testimony

Angel testified that he “saw [Jelitthza] as a normal child.” He stated that the two of them

were very close. He testified that Jelitthza was able to use the phone, identify family members

without any issues, and remember things. Angel said that the two of them discuss the television

programming that she watches. He stated that Jelitthza wants a boyfriend, job, friends, marriage,

and children of her own. In his opinion, with education, he believes Jelitthza could drive a car. It

was his overall belief that Jelitthza is capable of “functioning independently and safely in society”

and that she can go to work every day, catch a bus, understand her pay, and attend to all her needs

as an independent adult.

C. Lauretano’s testimony

(1) The report

Lauretano, the senior court investigator for the probate court, provided a narrative on the

report she produced after investigating Jelitthza’s circumstances. See Tex. Est. Code Ann.

§ 1054.151 (“On the filing of an application for guardianship . . . a court investigator shall

investigate the circumstances alleged in the application to determine whether a less restrictive

alternative to guardianship is appropriate.”); id. § 1054.153 (detailing that the court investigator

shall file a report containing the investigator’s findings and conclusion). 5

4
Lorena indicated that Jelitthza cannot perform even simple financial transactions. She testified that Jelitthza knows
what a $20 bill is but is unable to calculate the appropriate amount of change in a transaction.
5
While the investigator’s report itself was never admitted into evidence, we presume that the probate court reviewed
it. See Guardianship of N.P., No. 02-19-00233-CV, 2020 WL 7252322, at *8 (Tex. App—Fort Worth Dec. 10, 2020,
pet. denied) (mem. op.) (ruling that because the Estates Code “mandates such a filing” the court of appeals presumed

4
She found that Jelitthza is capable of independently performing her daily activities—such

as bathing, dressing, grooming, using the toilet, and eating. She can be home without supervision,

but she does not leave the home by herself. Jelitthza requires assistance with transportation,

scheduling appointments, and needs assistance with medication management. She previously had

a job bussing tables at a restaurant for about three months; at the time of the investigation, she was

not employed. 6

Jelitthza expressed a desire to enroll in community college, but she performed at a 3rd-

grade level in reading, writing, and math. Lauretano provided Jelitthza with a simple explanation

of guardianship and she “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

found that Jelitthza has “good family support from her mother and siblings.” In her report,

Lauretano provided that:

Pursuant to Sec. 1002.031, Texas Estates Code, there is a requirement to identify
and use less-restrictive alternatives to guardianship, if available and appropriate, in
an effort to promote and protect the well-being of the person. Less restrictive
alternatives to guardianship have been identified. The proposed ward . . . would
benefit from a Supported-Decision Making Agreement 7 [SDMA] wherein she can
identify someone to assist her with decision-making. The proposed ward can also
assign an authorized representative through Health and Human Services to assist

that the probate court considered the report, thus allowing the court of appeals to take the report into account in its
own analysis) (citing In re Guardianship of Parker, 275 S.W.3d 623, 629 (Tex. App.—Amarillo 2008, no pet.)).
6
It was not clear why Jelitthza was no longer working. Lorena testified that while Jelitthza can work, she does not
want to and is scared to work.
7
An SDMA is an agreement by an adult with a disability which authorizes the supporter to do any or all of the
following: (1) providing assistance in understanding “the options, responsibilities, and consequences of the adult’s life
decisions, without making those decisions on behalf of the adult with a disability”; (2) assisting the adult in “accessing,
collecting, and obtaining information that is relevant to a given life decision”; (3) assisting the adult with a disability
in understanding information that is relevant to a life decision; and (4) assisting the adult with communicating with
adults about their decisions. Tex. Est. Code. Ann. § 1357.051(1)–(4); see id. § 1357.003 (“The purpose of this chapter
[referring to SDMA] is to recognize a less restrictive alternative to guardianship for adults with disabilities who need
assistance with decisions regarding daily living but who are not considered incapacitated persons for purposes of
establishing a guardianship under this title”) (internal footnote omitted).

5
with her Medicaid Application, and her mother can apply to be named her
representative payee through the Social Security Administration.
Finally, she concluded that, should the probate court decide that guardianship is necessary, Lorena

was qualified to serve as the permanent guardian.

Lauretano restated her report finding that Jelitthza can attend to her activities of daily living

such as grooming, bathing, dressing, using the toilet, and household chores. She also believes that

while Jelitthza can grow and mature, Jelitthza is not capable of living independently. Lauretano

also voiced her opinion that Jelitthza may not be totally incapacitated, but perhaps only partially

incapacitated. Lauretano further believed that Jelitthza would be “very vulnerable” and gave the

example of Jelitthza’s inability to go to a nightclub by herself; she further expressed doubts about

Jelitthza’s ability to obtain a driver’s license. Lauretano reiterated that recommendation of an

SDMA.

D. Andres Aristizabal, M.D. report

Aristizabal was the first physician to evaluate Jelitthza. 8 He diagnosed her with a moderate

learning disability. His report indicated she had deficits with immediate recall, solving problems,

interpreting idiomatic expressions, and breaking down complex tasks into simple steps and

carrying them out. He also found Jelitthza could not (1) initiate and make responsible decisions

regarding complex business, managerial, and financial decisions; (2) manage a personal bank

account; (3) safely operate a motor vehicle; (4) vote in a public election; (5) make decisions

regarding marriage; and (6) determine her own residence. Aristizabal found that Jelitthza could (1)

attend to basic activities of daily living (e.g., bathing, grooming, dressing, toileting) without

supports and services; (2) attend to instrumental activities of daily living (e.g., shopping, cooking,

traveling, cleaning); (3) consent to medical and dental treatment; (4) and consent to psychological

8
Presumably, he is her regular physician since the record indicates Jelitthza was under his continuing treatment.

6
and psychiatric treatment. Aristizabal found that Jelitthza is incapacitated as defined under

§ 1002.017 of the Estates Code. Further, he found that she is partially incapacitated—that she lacks

the capacity to do some, but not all, of the tasks necessary to care for herself and to manage her

property.

E. Martin Guerrero Jr., M.D. report

Guerrero evaluated Jelitthza after the probate court, on its own motion, found that there

was good cause to order an independent psychiatric evaluation. Guerrero testified that Jelitthza

was referred to him to determine her capacity to: (1) execute a healthcare power of attorney; (2)

live independently; (3) manage her finances; (4) drive; (5) vote; (6) marry; (7) travel; (8) make

gifts of real/personal property; (9) execute a living will; (10) execute legal documents or contracts;

and (11) determine her residence. He concluded the following:

Based on her developmental intellectual deficiencies, Jelitthza is compromised on
all of the above listed functions and lacks capacity in each area. While there were
no available psychologic records for review, it is clear from the interview that she
is functioning at the mental level of a child based on her vocabulary, spelling, and
calculations. She is totally dependent on her mother for all support including
transportation, shopping, food, clothing, and housing. Jelitthza’s poor
understanding of finances places her at high risk of financial exploitation. While
she may know the current and past presidents by name, it is unlikely that she
comprehends their political and policy positions. Similarly, she may be able to
voice immediate preferences (such as living preferences and dietary likes), [but]
she is unable to appreciate long-term consequences. She presents dyslexic errors on
spelling and visual-spatial deficits on clock drawing. She has poor understanding
of her medical needs and cannot schedule her own appointments.
For these reasons, [] lacks capacity in each of the above functions listed by the
court, cannot live independently, and would benefit from having a guardian
appointed.
He further reported that Jelitthza could not provide him with any past psychiatric history; she owns

a cell phone, but did not know her own number or her mother’s number; she can engage in basic

activities of daily living on her own including using the restroom, feeding, dressing, grooming,

and bathing; but she cannot drive or use public transportation on her own; she can prepare

7
sandwiches and simple items for herself; and he stated that her mother claims she cannot take

medications without supervision nor can she arrange medical appointments by herself.

F. Probate court’s order

The probate court found by clear and convincing evidence that Jelitthza is an incapacitated

person under § 1002.017 of the Texas Estates Code ; See Tex. Est. Code Ann. § 1002.017. 9 It also

found by clear and convincing evidence that alternatives to guardianship as well as supports and

services available to the proposed ward that would avoid the need for guardianship were

considered but not feasible. See id. § 1101.101(a)(1)(D)–(E) Finally, the probate court found by a

preponderance of the evidence that Jelitthza is totally without capacity to care for herself or to

manage her property. See id. § 1101.101(a)(2)(D)(i); id. § 1101.151(a). 10

III. ISSUES ON APPEAL

Angel asserts two issues on appeal. First, he contends that “the trial court erred in finding

that the [proposed] ward is totally incapacitated.” In his second issue, he argues that the probate

court erred in granting the guardianship because there was insufficient proof the court considered

alternatives and supports and services that would avoid the need for guardianship and that they

were not feasible.

9
Even though the probate court did not make formal findings of fact and conclusions of law, the findings detailed in
the court’s order still possess probative value. See James J. Flanagan Shipping Corp. v. Del Monte Fresh Produce
N.A. Inc., 403 S.W.3d 360, 364 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (explaining that findings recited in the
court’s judgment are given probative value when they do not conflict with separately filed findings of fact); Matter of
Guardianship of M.A.L., No. 05-24-00205-CV, 2025 WL 1031928, at *4 (Tex. App.—Dallas Apr. 7, 2025, no pet.)
(mem. op.) (“But when the trial court includes findings of fact in its judgment and does not issue any separate findings
of fact and conclusions of law, the findings in the judgment have probative value.”).
10
The probate court specifically removed the following rights from Jelitthza: (1) to vote in a public election; (2) to
obtain a license to operate a motor vehicle; (3) to travel; (4) to make gifts of real or personal property; (5) to execute
a directive to physicians/living will; (6) to execute a power of attorney; (7) to execute a last will and testament; (8) to
execute any and all legal documents, including but not limited to powers of attorney or contracts; (9) to make personal
decisions regarding residence; and (10) to execute a supported decision-making agreement.

8
IV. GOVERNING LAW

A court may appoint a guardian with “either full or limited authority over an incapacitated

person as indicated by the incapacitated person’s actual mental . . . limitations and only as

necessary to promote and protect the well-being of the incapacitated person.” Tex. Est. Code. Ann.

§ 1001.001(a). Before appointing a guardian,

the court must , , , find by clear and convincing evidence that: (A) the proposed
ward is an incapacitated person; (B) it is in the proposed ward’s best interest to have
the court appoint a person as the proposed ward’s guardian; (C) the proposed ward’s
rights or property will be protected by the appointment of a guardian; (D)
alternatives to guardianship that would avoid the need for the appointment of a
guardian have been considered and determined not to be feasible; and (E) supports
and services available to the proposed ward that would avoid the need for the
appointment of a guardian have been considered and determined not to be
feasible . . . .

Id. § 1101.101(a)(1)(A)–(E). The factfinder must also find by a preponderance of the evidence

that, among other things, 11 the proposed ward is either (1) “totally without capacity as provided

by this title to care for himself or herself and to manage his or her property”; or (2) “lacks the

capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage

his or her property.” 12 Id. § 1101.101(a)(2)(D)(i)–(ii). 13

11
Though not at issue in this case, the court must also find by preponderance of the evidence (1) that the court has
venue of the case; (2) the person to be appointed the guardian is eligible to be the guardian; and (3) if the guardian is
appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish
residency for school enrollment. Tex. Est. Code. Ann. § 1101.101(a)(2)(A)–(C).
12
A finding that a proposed ward lacks the capacity to do some things “must specifically state whether the proposed
ward lacks the capacity, or lacks sufficient capacity with supports and services, to make personal decisions regarding
residence, voting, operating a motor vehicle, and marriage.” Id. § 1101.101(c).
13
Whether the probate court finds the proposed ward is totally incapacitated or partially incapacitated dictates whether
the court can designate a full guardianship or only a limited guardianship. See id. § 1101.151(a) (“If it is found that
the proposed ward is totally without capacity to care for himself . . . the court may appoint a guardian of the proposed
ward . . . with full authority over the incapacitated person.”); id. § 1101.152(a) (“If it is found that the proposed ward
lacks the capacity to do some, but not all, of the tasks necessary to care for himself . . . the court may appoint a guardian
with limited powers . . . .”).

9
An “incapacitated person” is defined by the Estates Code as an adult who because of a

mental condition is “substantially unable to” (1) “provide food, clothing, or shelter for himself or

herself”; (2) “care for their physical health”; or (3) “manage the person’s own financial affairs.”

Id. § 1002.017(2)(A)–(C).

The Estates Code defines “alternatives to guardianship” as: (1) execution of a medical

power of attorney under Chapter 166 of the Health and Safety Code; (2) appointment of an attorney

in fact or agent under a durable power of attorney; (3) execution of a declaration for mental health

treatment under Chapter 137, Civil Practices and Remedies Code; (4) appointment of a

representative payee to manage public health benefits; (5) establishment of a joint bank account;

(6) creation of a management trust under Chapter 1301; (7) creation of a special needs trust; (8)

designation of a guardian before the need arises under Subchapter E, Chapter 1104; and (9)

establishment of alternate forms of decision-making based on person-centered planning. Id.

§ 1002.0015(1)–(9). “Supports and services” refers to:

available formal and informal resources and assistance that enable an individual to:
(1) meet the individual’s needs for food, clothing, or shelter; (2) care for the
individual’s physical or mental health; (3) manage the individual’s financial affairs;
or (4) make personal decisions regarding residence, voting, operating a motor
vehicle, and marriage. Id. § 1002.031(1)–(4).

V. STANDARD OF REVIEW

We review a probate court’s order imposing a guardianship for an abuse of discretion.

Mandell v. Breland, 717 S.W.3d 474, 485–86 (Tex. App.—Houston [14th Dist.] 2025, no pet.);

Guardianship of A.E., 552 S.W.3d 873, 876 (Tex. App.—Fort Worth 2018, no pet.). A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any

guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004); Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007). A trial court also abuses its discretion by ruling without

10
supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But there is no

abuse of discretion if the trial court bases its decision on conflicting evidence and some evidence

of substantive and probative character supports its decision. Unifund CCR Partners v. Villa, 299

S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on

reh’g).

The Texas Supreme Court has noted 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) (noting that a court’s review of a guardianship proceeding must be “singularly mindful

of the trial court’s unique opportunity and responsibility to assess the circumstances presented”).

The probate court has wide discretion in the selection of a guardian. In re Guardianship of Jackson,

No. 12-13-00222-CV, 2014 WL 3845794, at *1 (Tex. App.—Tyler Aug. 6, 2014, no pet.) (memo.

op.) (citing Thedford v. White, 37 S.W.3d 494, 496 (Tex. App.—Tyler 2000, no pet.)).

In the review of guardianship orders, legal and factual sufficiency are not independent,

reversible grounds of error but are factors to consider in assessing whether the trial court abused

its discretion. Guardianship of A.E., 552 S.W.3d at 877; Mandell, 717 S.W.3d at 486.

In this case, Lorena, as the applicant for guardianship, had the burden of proof. See

Ulrickson v. Hawkins, 696 S.W.2d 704, 705 (Tex. App.—Fort Worth 1985, writ ref’d n.r.e.) (op.

on reh’g); In re Guardianship of Winn, 372 S.W.3d 291, 300 (Tex. App.—Dallas 2012, no pet.); 3

Brandy Baxter-Thompson et al., Texas Practice Guide: Probate §17:86 (2025) (“The burden of

proof in a guardianship proceeding is on the person alleging the incapacity.”). When a party attacks

the legal sufficiency of an adverse finding on an issue for which the other party had the burden to

prove by a preponderance of the evidence, it must demonstrate on appeal that no evidence exists

11
to support the adverse finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263

(Tex. 2014) (per curiam). In a legal sufficiency review, we consider the evidence in the light most

favorable to the verdict and indulge every reasonable inference that would support it. City of Keller

v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). “Anything more than a scintilla of evidence is legally

sufficient to support the fact finder’s finding.” Sanders Oil & Gas, Ltd. v. Big Lake Kay Constr.,

Inc., 554 S.W.3d 79, 83 (Tex. App.—El Paso 2018, no pet.).

The operative test for legal sufficiency asks whether the evidence would enable reasonable

and fair-minded people to reach the verdict under review. E. Tex. Educ. Ins. Ass’n v. Ramirez, 631

S.W.3d 908, 918 (Tex. App.—El Paso 2021, pet. denied); see also Albert v. Fort Worth & W. R.R.

Co., 690 S.W.3d 92, 97 (Tex. 2024) (per curiam) (“More than a scintilla of evidence exists to prove

a vital fact, making reversal on legal-sufficiency grounds improper, when the evidence rises to a

level that would enable reasonable and fair minded people to differ in their conclusions.”); Kindred

v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983) (“When the evidence offered to prove a vital fact

is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence

is no more than a scintilla and, in legal effect, is no evidence.”). Notably, if the burden of proof

below was clear and convincing, the standard of review on appeal is slightly modified: “[W]e view

the evidence in the light most favorable to the trial court’s decision to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its findings were true.”

Henges v. Dolliver, No. 03-20-00429-CV, 2021 WL 5815752, at *5 (Tex. App.—Austin Dec. 8,

2021, no pet.) (mem. op.) (citing In re Guardianship of Boatsman, 266 S.W.3d 80, 85–86

(Tex. App.—Fort Worth 2008, no pet.)); see also City of Keller, 168 S.W.3d at 817 (“[A] higher

burden of proof requires a higher standard of review.”). 14

14
Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be established. Tex. Civ. Prac. & Rem Code Ann.

12
“When reviewing a trial court’s decision for factual sufficiency, [we] determine whether

the evidence supporting the judgment is so weak as to render the judgment clearly wrong or

manifestly unjust.” Fibela v. Wood, 697 S.W.3d 314, 319 (Tex. App.—El Paso 2023, no pet.) (citing

Ramirez, 631 S.W.3d at 918). Factual sufficiency challenges require courts of appeals to weigh all

the evidence. See Eggemeyer v. Hughes, 621 S.W.3d 883, 890 (Tex. App.—El Paso 2021, no pet.)

(citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)). We defer to the trier of fact with respect

to judgments about the credibility of the witnesses and the weight of the evidence and we do not

substitute our judgment for the trier of fact’s judgment, even if we might reach a different

conclusion upon our review of the record. Id. And as for legal sufficiency, the factual sufficiency

review must be slightly modified if the burden of proof below was elevated: “[W]e must consider

all the evidence in the record—both in support of and contrary to the trial court’s findings—to

determine whether a factfinder could reasonably form a firm belief or conviction about the truth

of the finding.” Henges, 2021 WL 5815752, at *5 (citing Boatsman, 266 S.W.3d at 86). “If the

disputed evidence is so significant that a factfinder could not have formed a firm belief or

conviction in the truth of the trial court’s findings, then the evidence is factually insufficient.” Id.

VI. TOTAL INCAPACITY

In his first issue on appeal, Angel argues that the probate court erred when it ruled that

Jelitthza was “totally without capacity” to care for herself or to manage her property. No court has

definitively ruled on what it means for a proposed ward to be “totally without capacity.” Tex. Est.

Code Ann. § 1101.101(a)(2)(D)(i). The trial court had to make an initial finding by clear and

§ 41.001(2); Tex. Fam. Code Ann. § 101.007; Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). This
intermediate standard falls between the preponderance standard of civil proceedings and the reasonable doubt standard
of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); State v. Addington, 588 S.W.2d 569, 570
(Tex. 1979). “While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no
requirement that the evidence be unequivocal or undisputed.” Boatsman, 266 S.W.3d at 86 (citing Addington, 588
S.W.2d at 570).

13
convincing evidence that the proposed ward was simply incapacitated. Id. § 1101.101(a)(1)(A). A

finding of total or partial incapacitation is properly understood as a finding on the severity of that

incapacitation. 15 See id. §§ 1101.101(a)(2)(D)(i)–(ii), 1002.017(A)–(C); Guardianship of A.E., 552

S.W.3d at 882 (discussing the statute defining “incapacitated person” while addressing the broader

question as to whether the trial court abused its discretion by failing to find that the proposed ward

was totally incapacitated); see also Malouf v. State ex rels. Ellis, 694 S.W.3d 712, 727 (Tex. 2024)

(“[W]e generally presume the Legislature uses the same word consistently throughout a statute

and uses different words to convey different meanings.”); ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012) (“A word or phrase is presumed

to bear the same meaning throughout a text; a material variation in terms suggests a variation in

meaning.”); cf. GEO Group, Inc. v. Hegar, 709 S.W.3d 585, 594 (Tex. 2025) (noting that “[w]e do

not consider statutory words and phrases in isolation. Rather, we consider the context and

framework of the entire statute.”) (internal citations and quotations omitted). The operative

question is to what extent Jelitthza is “substantially unable to”: (A) provide food, clothing, or

shelter for herself; (B) care for her physical health; or (C) manage her own financial affairs.

Tex. Est. Code. Ann. § 1002.017(2)(A)–(C).

15
This understanding is further supported when one considers the statutorily required Certificate of Medical
Examinations submitted by Aristizabal and Guerrero. See Guardianship of N.P., 2020 WL 7252322, at *2 (discussing
the “statutorily required Physician’s CME” that was submitted by the proposed ward’s long-time physician) (citing
Tex. Est. Code Ann. § 1101.103). The CME asks the physician to assess if the proposed ward is incapacitated for
purposes of § 1002.017. The physician is further instructed to indicate the level of incapacity. Both doctors used the
prescribed CME form posted on the website of the El Paso County Probate Court No. 2. See
https://www.epcounty.com/courts/documents/probate/forms/Physicians_Certificate_of_Medical_Examination_9.1.2
3.pdf (last visited Dec. 18, 2025).

This sliding-scale of incapacity is also supported by the provisions that govern whether an appointed guardian is given
full or limited authority. Tex. Est. Code Ann. § 1101.151(a). If the court finds that the proposed ward “lacks the
capacity to do some, but not all, of the tasks necessary to care for himself or herself . . . the court may appoint a
guardian with limited powers . . . [while still allowing] the proposed ward to care for himself or herself, including
making decisions regarding residence . . . .” Id. § 1101.152(a) (emphasis added). Understandably, the level of a
proposed ward’s inability to take care of herself has a direct correlation to what kind of guardianship is suitable for
them.

14
Lorena, Guerrero, and Lauretano all opined that Jelitthza lacks the ability to live

independently. She can make simple meals for herself, but her mother testified that Jelitthza (if she

were living alone) would not be able to go to the store and buy groceries. All three agreed that

Jelitthza is unable to deal with complex transactions involving her finances and contracts. She can

attend to some of the activities of daily living, but Guerrero found, she is totally dependent on her

mother “for all support including transportation, shopping, food, clothing, and housing.” Guerrero

also found that her poor understanding of finances “places her at high risk of financial

exploitation.” Finally, Jelitthza also demonstrated a poor understanding of her medical needs, so

would be unable to attend to her physical needs.

Despite Jelitthza’s ability to attend to some of the activities of daily living—such as

grooming, bathing, and using the restroom—there is more than a scintilla of evidence that she was

unable to perform the items listed in § 1002.017 that defines “incapacitated person.” See

Guardianship of N.P., 2020 WL 7252322, at *2 (proposed ward could perform certain basic tasks,

but court of appeals held that she was still totally incapacitated); Guardianship of A.E., 552 S.W.3d

at 882–83 (focusing on evidence that evinced a total inability to meaningfully take care of oneself

and engage in higher-level thinking that suggested total incapacitation); cf. Jackson, 2014 WL

3845794, at *4 (ruling that even though the proposed word could take care of his own personal

hygiene, this did not override the other evidence of incapacitation).

Here, the evidence was legally sufficient to support the probate court’s finding that Jelitthza

was totally incapacitated. See City of Keller, 554 S.W.3d at 83; Sanders Oil & Gas, 554 S.W.3d at

83; Kindred, 650 S.W.2d at 63. With respect to factual sufficiency, we acknowledge that the record

contains evidence that Jelitthza was only partially incapacitated. Aristizabal found that Jelitthza

was only partially incapacitated—a conclusion also shared by Lauretano. In addition, Angel’s

15
testimony suggested that Jelitthza suffers from no serious impediments at all. However, there is

ample evidence that she lacked the ability to perform the items listed in the definitional statute.

See Eggemeyer, 621 S.W.3d at 890. Despite the conflicting evidence about the extent of Jelitthza’s

deficits, it is within the trial court’s province to weigh the evidence and the credibility of the

witnesses. See id. On this record, we cannot find that the evidence is “so weak as to render the

judgment clearly wrong or manifestly unjust.” Fibela, 697 S.W.3d at 319.

We hold that the trial court did not abuse its discretion in finding Jelitthza is totally

incapacitated. See Unifund CCR Partners, 299 S.W.3d at 97 (“The trial court does not abuse its

discretion if it bases its decision on conflicting evidence and some evidence supports its

decision.”). We overrule Angel’s first issue.

VII. ALTERNATIVES TO GUARDIANSHIP

In his second issue, Angel contends that there was legally and factually insufficient

evidence that the court considered alternatives to guardianship and supports and services but that

they were not feasible.

A. Alternatives to guardianship and supports and services

The probate court must find that no alternatives or supports and services are feasible by

clear and convincing evidence. Tex. Est. Code Ann. § 1101.101(a)(1)(D)–(E). Alternatives to

guardianship include: (1) execution of a medical power of attorney under Chapter 166 of the Health

and Safety Code; (2) appointment of an attorney in fact or agent under a durable power of attorney;

(3) execution of a declaration for mental health treatment under Chapter 137, Civil Practices and

Remedies Code; (4) appointment of a representative payee to manage public health benefits; (5)

establishment of a joint bank account; (6) creation of a management trust under Chapter 1301; (7)

16
creation of a special needs trust; (8) designation of a guardian before the need arises under

Subchapter E, Chapter 1104; and (9) establishment of alternate forms of decision-making based

on person-centered planning. Tex. Est. Code. Ann. § 1002.0015(1)–(9). “Supports and services”

refers to “available formal and informal resources and assistance that enable an individual to: (1)

meet the individual’s needs for food, clothing, or shelter; (2) care for the individual’s physical or

mental health; (3) manage the individual’s financial affairs; or (4) make personal decisions

regarding residence, voting, operating a motor vehicle, and marriage.” Id. § 1002.031(1)–(4).

Because Lorena only sought guardianship over Jelitthza’s person, and not her estate, the

alternatives pertaining to finances are not relevant. See Guardianship of A.E., 552 S.W.3d at 886.

Angel did not identify which of the remaining statutory alternatives would be suitable for Jelitthza.

While there was extensive discussion among the judge, Lauretano, and counsel about alternatives

to guardianship, the only recommendation was Lauretano’s that an SDMA could work and would

be “beneficial to explore.” 16 The judge stated interest and support for further exploring the

possibilities of alternatives. In fact, the judge stated a third psychiatric evaluation to further

consider alternatives would assist the court.

However, the SDMA suggested by Lauretano is not feasible when the ward does not have

the capacity to make decisions. Guardianship of A.E., 552 S.W.3d at 889. Given Jelitthza’s total

incapacity, the probate court did not abuse its discretion in finding that the SDMA was not feasible.

See id.; Unifund CCR Partners, 299 S.W.3d at 97 (“The trial court does not abuse its discretion if

it bases its decision on conflicting evidence and some evidence supports its decision.”).

Although other alternatives were not mentioned or requested, they were not feasible either

because, like an SDMA, they would require Jelitthza to have the capacity to consent or understand

16
Lauretano noted that she is under a statutory obligation to consider alternatives as part of her examination and report.
See Tex. Est. Code Ann. § 1054.151.

17
consequences. See Mandell, 717 S.W.3d at 493 (ruling that the severity of the proposed ward’s

cognitive limitations did not render any of the alternatives feasible); Guardianship of A.E., 552

S.W.3d at 887–89 (explaining that if the proposed ward is totally incapacitated, none of the relevant

alternatives are suitable because of her inability to execute the required documents or understand

their consequences). The evidence was both legally and factually sufficient for the probate court

to form a firm belief or conviction that alternatives to guardianship were not feasible.

B. Supports and services

The feasibility of supports and services depends on whether they would allow

Jelitthza to provide for her own needs. In the words of one our sister courts:

All the evidence at the hearing established that no amount of resources would
enable A.E. to meet her own needs for food, clothing, or shelter; care for her
physical or mental health; manager her financial affairs; or make personal decisions
regarding residence, voting, operating a motor vehicle, and marriage.

. . .

The clear and convincing evidence at the hearing established as a matter of law that
resources would not enable A.E. to meet her needs, care for her health, manage her
finances, or make the personal decisions prioritized by the Estates Code. 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.

Guardianship of A.E., 552 S.W.3d at 884 (emphasis in original). There was no evidence presented

that Jelitthza would be able to take care of herself with the help of others. Again, what was true for

A.E. with respect to supports and services is also true of Jelitthza given her serious cognitive

deficits. See id. We conclude that the evidence was legally and factually sufficient for the probate

court to form a firm belief or conviction that that supports and services were not a viable alternative

to guardianship. We overrule Angel’s second issue.

18
VIII. CONCLUSION

We hold the probate court did not abuse its discretion in finding that Jelitthza was totally

incapacitated and that alternatives to guardianship or supports and services were not feasible. We

affirm the court’s order appointing Lorena as permanent guardian.

MARIA SALAS MENDOZA, Chief Justice

January 14, 2026

Before Salas Mendoza, C.J., Palafox and Soto, JJ.
Soto, J., concurring without opinion

19