Guardianship is a significant undertaking, both to establish and to sustain. Contested cases are complicated; opposition can come from numerous sources. Further, unlike most other Court proceedings where a successful plaintiff wins the case and the court involvement is ended, statute requires continuing reporting to the Court for guardianships (although typically only a filing, not a hearing). Accordingly, the following considerations are foundational to understanding legal options and procedures related to situations that touch on guardianship issues. On Jan 1, 2014, the Texas Probate Code was repealed and the Texas Estates Code took effect. Unless otherwise specified, all section references in this post are to the Texas Estates Code.
These documents and techniques are faster and cheaper, and they often result in better long-term resolution of disagreements (as compared to a contested guardianship). What’s better, with these alternatives you can avoid addressing the issue of incapacity. In any event, the effectiveness and lower cost of these alternatives deserve your careful consideration.
- Durable Power of Attorney
- Medical Power of Attorney
- Directive to Physicians
- Appointment of Guardian before the need arises
- Designation of Healthcare Agent for Minor Child
- Testamentary appointment of guardian for minor children
- No guardianship needed for SSI benefits. 42 USC § 1383(a)(2).
- No guardianship needed for VA benefits. 38 USC §5502(a)(1).
- Trusts (i.e. living trust; SNT; §1301 Mgt. Trust; §1353 Community Administrator)
- Family settlement agreement
Guardianship Parties and Players
- Proposed guardian (usually Applicant, but not always)
- Proposed Ward (PW) §§ 1054.006 and 1054.201. Attorney ad Litem will be appointed to represent PW
- Interested parties § 1002.018. Spouse, creditor, or person interested in property (i.e. heirs, devisees), or a “person interested in the welfare” (i.e. anyone).
- Court Investigator § 1002.009. Social worker, does site visit and interviews, report issued to Court.
Jurisdiction and Venue
Statutory Probate Court or County Court. Venue, generally, is county of PW’s residence. § 1023.001(a); but see § 1023.001(b) (if PW is a minor).
- By application § 1101.001, or sua sponte, or if probable cause or Information Letter § 1102.
Permanent Guardianship § 1101.001
- Guardian of the Person – see § 1151.051 et. seq. (powers and duties)
- Guardian of the Estate – see § 1151.101 et. seq. (powers and duties)
- Guardian of Person and Estate – §1151.001 et. seq. (most common)
Temporary Guardianship § 1251
- Seldom necessary, disfavored by courts
- Substantial evidence PW may be incapacitated and probable cause to believe that the person or estate needs immediate appointment of a guardian. § 1251.002
- Sworn application and temporary appointment. Notice and hearing within 10 days of application, up to 30 days with PW’s consent. § 1251.006
- May also seek Temporary Restraining Order (TRO)
- Incapacity (substantially unable to provide food, clothing, or shelter himself, care for own physical health, or manage finances) § 1002.017
- Disqualification grounds (Applicant must not be disqualified). §1104.351 et. seq.
- Priority § 1104.001. Best interest §1104.101.
- Add facts and reasons supporting allegation that immediate appointment is required if Application for Temporary Guardianship § 1251.002
- Annual reports and accountings. Stays open until closed.
- Remember, you’re not a doctor. The doctor is an expert witness. Medical evidence is critical, but not always dispositive. Understand the Proposed Ward’s (PW) level of incapacity (partial vs. total). Attach Certificate of Medical Examination (“Dr. Note”) to application. Consider a Court ordered Independent Medical Exam if getting the PW to go to the doctor is a problem.
- Consider the consequences of litigation along with the actual severity of the problems. Consider the need for depositions and medical discovery. Consider likely opposition to an application and its impact on family relationships, but don’t dismiss urgent circumstances.
- Consider evidence issues up front. The Texas Rules of Evidence apply. Evidence of incapacity should not be stale (previous six months, Dr. Note should be less than 120-days old). Will PW testify? Will family members or others testify? Will doctors testify, and if so what will they say?
- Make sure the applicant is qualified. He or she isn’t disqualified or unsuitable, right? §§ 1104.351-4. Can applicant qualify for bond?
- Service and notice. Easily overlooked. Be sure to serve notices pursuant to § 1051.101.
- Scheduling. Many courts have contested and uncontested dockets – don’t surprise your judge.
- Immediately report signs of elder abuse or neglect. Call Police or Adult Protective Services (APS).