Contents - Guardianship · contents - guardianship i. scope of summary ... xiii. special guardianships ... special proceedings checklist

Contents - Guardianship

I. SCOPE OF SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. “Incapacitated Person” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. “Minor”: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. “Interested Persons” or “Persons Interested” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

D. “Personal Representative” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

E. “Proceedings in Guardianship,” “Guardianship Matter(s),” “Guardianship Proceeding,” and

“Proceedings for Guardianship” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

F. “Statutory Probate Court” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

G. “Statutory County Court” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

H. “County Court” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. “Guardianship Certification Board” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

IV. JURISDICTIONAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

V. JURISDICTION DEFINED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Original Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. County Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

a. County with No Statutory Probate Court or County Court at Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

b. County Court at Law Exercising Probate Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. Statutory Probate Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

published 3/22/18 with revisions through the 85th Legislature 2017

Guardianship - i

Guardianship - Table of Contents

B. Contested Guardianship Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. County with No Statutory Probate Court or County Court at Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. County Court at Law Exercising Probate Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. County with Statutory Probate Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Concurrent Jurisdiction with District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

D. Most Appropriate Forum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

VI. VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. Guardianship of Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Guardianship of Incapacitated Persons Other than Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

C. Guardianship Where Appointee Provided for by Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. Venue in More Than One County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

E. Transfer of Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

F. Evidence Establishing Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

G. Jurisdiction to Hear Venue Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

H. Location of Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. Transfer for Convenience of Guardian or Other Interested Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Prior Selection or Selection by Minor Ward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Appointment by Surviving Parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Selection by Minor over 12 Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3. When another Guardian Previously Has Been Appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4. Pre-need Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Priority Right to Serve as Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. Guardian of Minors - Parents’ Priority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. Guardians of Orphans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3. Guardian of Persons other than Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


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a. Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

b. Nearest of Kin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

c. Eligible Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. Only One Person To Be Appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

D. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

E. Persons Disqualified to Serve as Guardians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

F. Presumption Concerning Best Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

G. Non-resident Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

H. Application for Appointment of Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1. Application Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2. Application Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3. Court’s Initiation of Guardianship Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

4. Establishing Probable Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

5. Information Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

6. Adults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

7. Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

8. Sworn Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

9. Person Requiring Guardianship after the Ward is no Longer a Minor . . . . . . . . . . . . . . . . . . . . . . . . 27

I. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

1. Posting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2. Personal Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3. Return of Citation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

4. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

5. Notice to Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

6. Service on Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

7. Attorney Ad Litem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

8. Duties of Attorney Ad Litem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31


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J. Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

1. Examinations and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2. Contest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

a. Who May Contest? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

b. Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

c. Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

d. Prior Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

e. Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

K. Burden of Proof for Appointing Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

L. Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

1. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

2. When No Bond Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

a. Guardian Appointed by Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

b. Corporate Fiduciary as Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

c. Guardianship Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

3. Guardian of the Person Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

4. Guardian of the Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

a. Evidence Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

b. Amount of Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

5. Sureties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

a. Personal Sureties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

b. Authorized Corporate Surety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

6. Approval and Filing of Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

7. Inadequate Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

8. Excessive Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

9. Suit on Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

10. Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

M. Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

N. Complete Restoration of Ward’s Capacity or Modification of Guardianship . . . . . . . . . . . . . . . . . . . . 40


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1. Written Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

2. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

3. Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

4. Findings Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

5. Examinations and Reports Relating to Restoration of Capacity or Modification of Guardianship . . 43

VIII. ADMINISTRATION OF THE GUARDIANSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

A. Marshaling Assets, Notice to Creditors, and Filing the Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

1. Taking Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

2. Notice to Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

3. Filing the Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

B. Powers and Duties of the Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

1. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

a. Guardian of the Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

b. Guardian of the Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

2. Power to Act without Court Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

3. Collection of Claims and Recovery of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

4. Support, Maintenance, and Education of the Ward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

a. Where the Guardian is Parent of a Minor/ward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

b. Liability for Support of an Incapacitated Person without an Estate . . . . . . . . . . . . . . . . . . . . . . . . . 49

c. Non-parent Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

d. Expenditures of Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

e. Court Approval of Previous Expenditures of Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

f. Social Security Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

5. Claims Due to and from the Ward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

a. Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

b. Claim by Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

c. Order of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

d. Classification of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

e. Guardian Purchasing Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

f. Notification to Veterans’ Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53


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g. Failure to Endorse Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

h. Nutshell Claim Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

6. Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

a. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

b. Best Interest of Ward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

c. Purchase of Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

d. Funeral Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

e. Home Equity Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

7. Sale and Partition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

a. Purchase by Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

b. Certain Personal Property to Be Sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

c. Application to Sell Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

d. Cash or Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

e. Private or by Auction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

f. Temporary Guardian Authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

g. Nutshell Procedure for Sale of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

h. Hear Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

i. Court Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

j. Joint or Commonly Owned Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

8. Investments and Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

9. Rental and Leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

10. Gifts and Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

a. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

b. Tax-motivated Gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

c. Charitable Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

11. Annual and Final Accountings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

a. Annual Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

b. Final Settlement, Accounting, and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

C. Tolling of Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

IX. GUARDIAN’S COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

A. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67


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B. Limitations on Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

C. When Compensation Allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

D. Compensation above the Statutory Formula . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

E. Compensation for Personal Services Rendered by Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

F. Forfeiture of Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

X. ATTORNEY’S FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

A. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

B. Attorney’s Fees in Temporary and Permanent Guardianships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

1. Guardianship Contest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

2. Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

3. Hearing on Temporary Guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

C. Contingent Fee Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

D. Forfeiture of Attorney’s Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

E. Reasonable Attorney’s Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

F. Discovery Considerations in Contest for Attorney’s Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

XI. FEES OF AD LITEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

A. Attorney Ad Litem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

B. Guardian Ad Litem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

XII. DEATH, RESIGNATION, OR REMOVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

A. Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

B. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

1. Acceptance of Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

2. Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

3. Delivery of Ward’s Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

C. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76


Guardianship - vii


1. Removal without Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

2. Removal with Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

3. Additional Grounds for Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

4. Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

5. Prior Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

6. Minor at Least 12 Years of Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

7. Named Guardian Attains Adulthood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

D. Successor Guardians for Wards of Guardianship Programs or Governmental Entities . . . . . . . . . . . 80

XIII. SPECIAL GUARDIANSHIPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

A. Temporary Guardianships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

1. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

2. Appointment of Department of Aging and Disability Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

3. Written Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

4. Appointment of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

5. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

6. Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

7. Appearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

8. Presence in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

9. Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

10. Letters of Temporary Guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

11. Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

12. Qualification of Permanent Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

B. Non-Resident Guardians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

1. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

2. Additional Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

3. Removal of Property from State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

C. Resident Guardian of Non-Resident Minor or Incapacitated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85


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XIV. AVOIDING GUARDIANSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

A. Management Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

1. Creation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

2. Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

3. Transfer to Pooled Trusts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

4. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

B. The Durable Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

C. Durable Power of Attorney for Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

D. Management of Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

E. Community Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

F. No Administration of Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

G. Payment of Claims to County Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

H. Sale of Minor’s Property without Guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

I. Minor Ward’s Estate of $100,000 or Less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

J. Negligible Estates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

K. Gifts under the Texas Uniform Gifts to Minors Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

L. Suit and Recovery by Next Friend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

M. Receivership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

N. Managing Conservatorships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

O. School Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

P. Consent for Emergency Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Q. Surrogate Decision Making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

R. Supported Decision Making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

XV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

TEMPORARY GUARDIANSHIP CHECKLIST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96


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Judicial Checklist for a Temporary Guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH CHECKLIST . . . . . . . . . . . . 99

Checklist for Preliminary Guardianship Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Findings of the Court, Appointment, and Order of Guardianship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Qualification of Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

The Guardian. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Removal of Guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Duties of Guardian of the Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

SPECIAL PROCEEDINGS CHECKLIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Special Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131


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I. SCOPE OF SUMMARY

Compiled 07-18-2017; updated 1-12-18; 3-22-18.

This summary discusses the guardianship process, from the initial decision to seek a guardianship incourt through its termination.

II. GENERAL MATTERS

Lawyers frequently come across situations in which the ability of another to manage his personal and economic affairs comes into question. In both criminal and civil matters, judges frequently findthemselves in situations in which the ability of another person to function in his own best interest issuspect. As a lawyer, there are ethical considerations when engaged in legal dealings with suchpersons that often require counsel to intervene or cause an intervention by others to protect theinterests of the person whose capacity is being questioned. As a judge, there are both ethical andlegal implications in dealing with someone having a lack of capacity. For judges with jurisdictionover guardianship matters, these situations become more complicated because of statutory duties toincapacitated persons and those having mental health problems. In some situations, the use of theprovisions of the Texas Mental Health Code, the Texas Mentally Retarded Persons Act, and theChemically Dependent Person’s Act will resolve the immediate problem. At other times, the courtsmust resort to the Texas Probate Code to resolve the matter by invoking the Code’s guardianshipprovisions.

A guardian is a statutory officer appointed by the court to guard the interest of the ward and provide for the ward’s education and maintenance. Decker v. Wiggins, 421 S.W.2d 189 (Tex. Civ. App. - FortWorth 1967, no writ). The guardian may be of the ward’s person or the ward’s estate or both theperson and the estate of the ward. The guardianship of the person is essentially a managingconservatorship. In re Guardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App. - Corpus Christi 1977,writ ref’d n.r.e.); Cruz v. Scanlan, 682 S.W.2d 422 (Tex. App. - Houston [1st Dist.] 1984, no writ). For a historical perspective of the guardian’s role at common law, see Blackstone, Commentaries on theLaws of England, Book One, Chapter 17, “Of Guardian and Ward.”

Effective Sept. 1, 2017, under SB 1096, the Texas Supreme Court will create a program forguardianships in which all guardianships in Texas will be required to register with the Judicial Branch Certification Commission. {Tex. Govt Code Sec. 155.151(a)} (as enacted by SB 1096). Courts withjurisdiction over a guardianship must immediately notify the commission of the removal of aguardian. {Tex. Govt Code Sec. 155.151(b)} (as enacted by SB 1096)

This information will be compiled into a database that will be shared with the Department of PublicSafety {Tex. Govt Code Sec. 155.152} (as enacted by SB 1096), which will share information fromthe database through the Texas Law Enforcement Telecommunications System (TLETS) used by


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I. SCOPE OF SUMMARY

law enforcement agencies in Texas. {Tex. Govt Code Sec. 155.153} (as enacted by SB 1096).Among other things, this database is designed to assist law enforcement in complying withnotification duties to guardians in relation to wards who encounter the criminal justice or mentalhealth system in Texas. See {Tex. Code Crim. Proc. Art. 14.055}, {Tex. Code Crim. Proc. Art.15.171}, and {Tex. Health and Safety Code Sec. 573.0021}.

Effective Sept. 1, 2017, a guardianship program may not be appointed guardian if the program is not registered as required under Government Code Chapter 155. {Tex. Estates Code Sec. 1104.359}Note that the bill that enacted this change, SB 36, adopts a slightly different version of GovernmentCode Chapter 155, Subchapter D, also effective Sept. 1, 2017. Both bills - SB 1096 and SB 36 - callfor registration of guardians and creation of a registration database, however.

Also effective Sept. 1, 2017, the Texas Legislature mandated criminal history background checks forindividuals seeking appointment as guardians. {Tex. Govt Code Secs. 155.203 and 155.205} Under{Tex. Estates Code Sec. 1104.402(a)}, a clerk must obtain criminal history information from theDPS or FBI for:

(1)a private professional guardian;

(2)each person who represents or plans to represent the interests of a ward as a guardian onbehalf of the private professional guardian;

(3)each person employed by a private professional guardian who will:

(A)have personal contact with a ward or proposed ward;

(B)exercise control over and manage a ward’s estate; or

(C)perform any duties with respect to the management of a ward’s estate;

(4)each person employed by or volunteering or contracting with a guardianship program toprovide guardianship services to a ward of the program on the program’s behalf; or

(5)any other person proposed to serve as a guardian under this title, including a proposedtemporary guardian and a proposed successor guardian, other than an attorney. {Tex. EstatesCode Sec. 1104.402(a)}

While Sec. 1104.402 previously excluded a ward’s family member from the criminal history check,this exclusion was removed in 2017.


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II. GENERAL MATTERS

III. DEFINITIONS

To understand guardianship proceedings, certain words or phrases must be defined.

A. “Incapacitated Person”

An “incapacitated person” is:

1. a minor;

2. an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s ownphysical health, or to manage the individual’s own financial affairs; or

3. a person who must have a guardian appointed to receive funds due the person from anygovernmental source. (See {Tex. Estates Code Sec. 1001.003} and {Tex. Estates Code Sec.1002.016}

B. “Minor”:

A “minor” is a person who is younger than 18 and who has never been married or who has nothad the person’s disabilities of minority removed for general purposes. {Tex. Estates Code Sec.1002.019}

C. “Interested Persons” or “Persons Interested”

An “interested person” or “person interested” in is an heir, devisee, spouse, creditor, or any other person having a property right in, or claim against, the estate being administered or a personinterested in the welfare of an incapacitated person, including a minor. {Tex. Estates Code Sec.1002.018}

In Allison v. Walvoord, 819 S.W.2d 624 (Tex. App. - El Paso 1991, orig. proceeding), the court ofappeals, in a mandamus action, vacated a trial court ruling granting standing to contest a limitedguardianship to a party who had a pending lawsuit against the proposed ward. In doing so, thecourt reasoned that the limited guardianship law was created to protect an individual and thatpersons with adverse interests had no right to contest a guardianship. Although this case wasdecided before the 1993 guardianship law changes, this reasoning also should apply to the newerProbate Code provisions. {Tex. Estates Code Sec. 1104.101} and {Tex. Estates Code Secs.1101.101-.102}

Also see {Tex. Estates Code Sec. 1055.001} (regarding standing to commence or contestproceedings). Sec. 1055.001 denies the right to a person with an adverse interest to a proposedward to commence or contest a proceeding creating the guardianship. Sec. 1055.001 also


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III. DEFINITIONS

prohibits a person with an adverse interest from contesting an application for completerestoration of a ward’s capacity or modification of a ward’s guardianship.

D. “Personal Representative”

A “personal representative” is a guardian or a successor guardian. {Tex. Estates Code Sec.1002.028}

E. “Proceedings in Guardianship,” “Guardianship Matter(s),” “GuardianshipProceeding,” and “Proceedings for Guardianship”

These terms are synonymous and include a matter or proceeding relating to a guardianship or any other matter addressed by this chapter, including:

1. appointment of a guardian of a minor or other incapacitated person, including anincapacitated adult for whom the court obtained continuing, exclusive jurisdiction in a suitaffecting the parent-child relationship (“SAPCR”) when the person was a child;

2. an application, petition, or motion regarding guardianship or a substitute for guardianship;

3. a mental health action; and

4. an application, petition, or motion regarding a trust created under Estates Code Title 3.{Tex. Estates Code Sec. 1002.015}

F. “Statutory Probate Court”

A “statutory probate court” is a court whose jurisdiction is limited by statute to the generaljurisdiction of a probate court and a court whose statutorily designated name contains the word“probate.” County courts at law exercising probate jurisdiction are not considered statutoryprobate courts unless the statutorily designated name of the county courts at law includes theword “probate.” {Tex. Estates Code Sec. 1002.008} and {Tex. Govt Code Sec. 21.009}

G. “Statutory County Court”

A “statutory county court” is a county court created by the legislature pursuant to {Tex. Const.Art. V, Sec. 1} and includes county courts at law, county criminal courts, county criminal courtsof appeal, and county civil courts at law.

H. “County Court”

“County courts” are those courts created in each county pursuant to {Tex. Const. Art. V, Sec.15}. Historically, these have been called “constitutional county courts” because the Texas


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III. DEFINITIONS C. “Interested Persons” or “Persons Interested”

Constitution at one time set out this court’s judicial jurisdiction. However, by virtue of a 1978amendment to the Texas Constitution, the Texas Legislature now has the authority to determinewhat jurisdiction, if any, the county courts have. {Tex. Gov. Code Sec. 21.009} and {Tex. Const.Art. V, Sec. 16}

I. “Guardianship Certification Board”

The Guardianship Certification Board, administered by the Office of Court Administration, isresponsible for overseeing guardianship programs and private professional guardians. For moreinformation on the board, see {Tex. Govt Code Chapter 111}.

IV. JURISDICTIONAL HISTORY

In bifurcating pre-1979 jurisdictional provisions affecting guardianship and decedent’s estateadministration, the legislature carefully retained the same jurisdictional language with the intent ofcreating co-extensive jurisdiction.

Until 1979, probate court jurisdiction was limited. The initial expansion in jurisdiction wasaccomplished by the enactment of amendments to both the Texas Constitution and to the TexasProbate Code’s jurisdictional provisions between 1975 and 1979. Despite these expansiveamendments, appellate courts resisted the directive to recognize the broad jurisdiction of theprobate courts, and, in fact, interpreted their jurisdictional reach narrowly. The legislature regularlyresponded to these appellate decisions with what it thought was clarifying language emphasizing thebreadth of the jurisdiction.

In 2009, the Texas Legislature changed the organization of the statutes defining jurisdiction forprobate matters other than guardianship, creating new Secs. 4A through 4H and repealing Secs. 4, 5,and 5A. For more information on those changes, see Chapter E. on Probate law in this manual.

The following session (through SB 1196, effective Sept. 1, 2011), the legislature amended thestatutory scheme defining jurisdiction for guardianship matters, and in 2013, the legislaturecontinued transferring statutes from the Probate Code to the Estates Code, creating Estates CodeChapters 1021-1023, dealing with jurisdiction. The complete version of the Estates Code took effect Jan. 1, 2014, at which time the former Probate Code ceased to govern probate and guardianshipmatters.


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IV. JURISDICTIONAL HISTORY H. “County Court”

V. JURISDICTION DEFINED

A. Original Jurisdiction

All guardianship proceedings must be filed and heard in a court exercising original probatejurisdiction. The court exercising original probate jurisdiction also has jurisdiction of allproceedings related to the guardianship proceeding as specified in Estates Code Sec. 1021.001 for that type of court. {Tex. Estates Code Sec. 1022.001(a)}

A probate court may exercise pendent and ancillary jurisdiction as necessary to promote judicialefficiency and economy. {Tex. Estates Code Sec. 1022.001} A final order issued by a probatecourt is appealable to the court of appeals.

1. County Courts

a. County with No Statutory Probate Court or County Court at Law

In a county in which there is no statutory probate court or county court at lawexercising original probate jurisdiction, the county court has original jurisdiction ofguardianship proceedings. {Tex. Estates Code Sec. 1022.002} For these courts, a“matter related to a guardianship proceeding” includes:

(1) granting letters of guardianship;

(2) settling an account of a guardian and all other matters relating to thesettlement, partition, or distribution of a ward’s estate;

(3) a claim brought by or against a guardianship estate;

(4) an action for trial of title to real property that is guardianship estate property,including enforcement of a lien against the property;

(5) an action for trial of the right of property that is guardianship estate property;

(6) after a guardianship of the estate of a ward is required to be settled asprovided by {Tex. Estates Code Sec. 1204.001}:

(a) an action brought by or on behalf of the former ward against a formerguardian of the ward for alleged misconduct arising from the performance ofthe person’s duties as guardian;


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V. JURISDICTION DEFINED I. “Guardianship Certification Board”

(b) an action calling on the surety of a guardian or former guardian to performin place of the guardian or former guardian, which may include the award of ajudgment against the guardian or former guardian in favor of the surety;

(c) an action against a former guardian of the former ward that is brought by asurety that is called on to perform in place of the former guardian;

(d) a claim for the payment of compensation, expenses, and court costs, andany other matter authorized under Subpart H, Part 2, of the Probate Code; and

(e) a matter related to an authorization made or duty performed by a guardianunder Estates Code Chapter 1204; and

(7) the appointment of a trustee for a trust created under {Tex. Estates CodeSecs. 1301.053-.054}, the settling of an account of the trustee, and all othermatters relating to the trust. {Tex. Estates Code Sec. 102.001}

b. County Court at Law Exercising Probate Jurisdiction

In a county in which there is no statutory probate court, but in which there is acounty court at law exercising original probate jurisdiction, the county court at lawexercising original probate jurisdiction and the county court have concurrent original jurisdiction of guardianship proceedings, unless otherwise provided by law. Thejudge of a county court may hear guardianship proceedings while sitting for the judge of any other county court. as {Tex. Estates Code Sec. 1021.002(b)}

2. Statutory Probate Court

In a county in which there is a statutory probate court, the statutory probate court has original jurisdiction of guardianship proceedings. {Tex. Estates Code Sec. 1022.002(c)} A “matterrelated to a guardianship proceeding” includes all of the matters allowed for county courts incounties that do not have a statutory probate court (listed above), as well as:

a. a suit, action, or application filed against or on behalf of a guardianship or a trustee of a trust created under {Tex. Estates Code Chapter 1301}; and

b. a cause of action in which a guardian in a guardianship pending in the statutoryprobate court is a party. {Tex. Estates Code Sec. 1021.001}


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V. JURISDICTION DEFINED A. Original Jurisdiction

B. Contested Guardianship Proceedings

1. County with No Statutory Probate Court or County Court at Law

In a county in which there is no statutory probate court or county court at law exercisingoriginal probate jurisdiction, when a matter in a guardianship proceeding is contested, thejudge of the county court may, on the judge’s own motion, or must, if any party so moves:

a. request the assignment of a statutory probate court judge to hear the contestedmatter, as provided by {Tex. Govt Code Sec. 25.0022}; or

b. transfer the contested matter to the district court, which may then hear thecontested matter as if originally filed in the district court. {Tex. Estates Code Sec.1022.003(a)}

If a party to a guardianship proceeding files a motion for the assignment of a statutory probate court judge to hear a contested matter in the proceeding before the judge of the county courttransfers the contested matter to a district court under this section, the county judge mustgrant the motion for the assignment of a statutory probate court judge and may not transferthe matter to the district court unless the party withdraws the motion. {Tex. Estates Code Sec. 1022.003(b)}

If a judge of a county court requests the assignment of a statutory probate court judge to heara contested matter in a guardianship proceeding on the judge’s own motion or on the motionof a party to the proceeding, the judge may request that the statutory probate court judge beassigned to the entire proceeding on the judge’s own motion or on the motion of a party.{Tex. Estates Code Sec. 1022.003(c)}

A party to a guardianship proceeding may file a motion for the assignment of a statutoryprobate court judge before a matter in the proceeding becomes contested, and the motion isgiven effect as a motion for assignment of a statutory probate court judge under {Tex. Estates Code Sec. 1022.003(a)} if the matter later becomes contested. {Tex. Estates Code Sec.1022.003(d)}

A transfer of a contested matter in a guardianship proceeding to a district court under anyauthority other than the authority provided by this section:

a. is disregarded for purposes of {Tex. Estates Code Sec. 1022.003}; and

b. does not defeat the right of a party to the proceeding to have the matter assignedto a statutory probate court judge in accordance with this section. {Tex. EstatesCode Sec. 1022.003(e)}


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V. JURISDICTION DEFINED B. Contested Guardianship Proceedings

A statutory probate court judge assigned to a contested matter in a guardianship proceeding or to the entire proceeding has the jurisdiction and authority granted to a statutory probate courtby the Estates Code. A statutory probate court judge assigned to hear only the contestedmatter in a guardianship proceeding must, on resolution of the matter (including any appeal),return the matter to the county court for further proceedings not inconsistent with the ordersof the statutory probate court or court of appeals, as applicable. A statutory probate courtjudge assigned to the entire guardianship proceeding as provided by {Tex. Estates Code Sec.1022.003(c)} must, on resolution of the contested matter (including any appeal), return theentire proceeding to the county court for further proceedings not inconsistent with the ordersof the statutory probate court or court of appeals. {Tex. Estates Code Sec. 1022.003(f)}

A district court to which a contested matter in a guardianship proceeding is transferred has the jurisdiction and authority granted to a statutory probate court by this code. On resolution of acontested matter transferred to the district court under this section, including any appeal ofthe matter, the district court must return the matter to the county court for furtherproceedings not inconsistent with the orders of the district court or court of appeals, asapplicable. {Tex. Estates Code Sec. 1022.003(g)}

If the contested matter in a guardianship proceeding is assigned to a statutory probate courtjudge or a district court under Sec. 1022.003, the county court shall continue to exercisejurisdiction over management of the guardianship, other than a contested matter, until finaldisposition of the contested matter is made in accordance with Sec. 1022.003. Any matterrelated to a guardianship proceeding in which a contested matter is transferred to a districtcourt may be brought in the district court. The district court in which a matter related to theproceeding is filed may, on the court’s own motion or on motion of any party, find that thematter is not a contested matter and transfer the matter to the county court with jurisdictionof the management of the guardianship. {Tex. Estates Code Sec. 1022.003(h)}

If a contested matter in a guardianship proceeding is transferred to a district court under Sec.1022.003, the district court has jurisdiction of any contested matter in the proceeding that issubsequently filed, and the county court must transfer those contested matters to the districtcourt. If a statutory probate court judge is assigned under Sec. 1022.003 to hear a contestedmatter in a guardianship proceeding, the statutory probate court judge shall be assigned tohear any contested matter in the proceeding that is subsequently filed. {Tex. Estates Code Sec. 1022.003(i)}

The clerk of a district court to which a contested matter in a guardianship proceeding istransferred under this section may perform in relation to the transferred matter any function acounty clerk may perform with respect to that type of matter. {Tex. Estates Code Sec.1022.003(j)}


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2. County Court at Law Exercising Probate Jurisdiction

In a county in which there is no statutory probate court, but in which there is a county courtat law exercising original probate jurisdiction, when a matter in a guardianship proceeding iscontested, the judge of the county court may, on the judge’s own motion, or shall, on themotion of any party to the proceeding, transfer the contested matter to the county court atlaw. In addition, the judge of the county court, on the judge’s own motion or on the motionof a party to the proceeding, may transfer the entire proceeding to the county court at law.{Tex. Estates Code Sec. 1022.004(a)}

A county court at law to which a proceeding is transferred under this section may hear theproceeding as if originally filed in that court. If only a contested matter in the proceeding istransferred, on the resolution of the matter, the matter shall be returned to the county courtfor further proceedings not inconsistent with the orders of the county court at law. {Tex.Estates Code Sec. 1022.004(b)}

3. County with Statutory Probate Court

In a county in which there is a statutory probate court, the statutory probate court hasexclusive jurisdiction of all guardianship proceedings, regardless of whether contested oruncontested. {Tex. Estates Code Sec. 1022.005(a)}

A cause of action related to a guardianship proceeding of which the statutory probate courthas exclusive jurisdiction as provided by {Tex. Estates Code Sec. 1022.005(a)} must bebrought in the statutory probate court unless the jurisdiction of the statutory probate court isconcurrent with the jurisdiction of a district court as provided by {Tex. Estates Code Sec.1022.006} or with the jurisdiction of any other court. {Tex. Estates Code Sec. 1022.005(b)}

C. Concurrent Jurisdiction with District Court

A statutory probate court has concurrent jurisdiction with the district court in:

1. a personal injury, survival, or wrongful death action by or against a person in the person’scapacity as a guardian; and

2. an action involving a guardian in which each other party aligned with the guardian is not aninterested person in the guardianship. {Tex. Estates Code Sec. 1022.006}

D. Most Appropriate Forum

If at any time a court determines that it acquired jurisdiction of a proceeding for appointing aguardian because of unjustifiable conduct, the court may:


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1. decline to exercise jurisdiction;

2. exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensurethe health, safety, and welfare of the ward or protection of the ward’s property or prevent arepetition of the unjustifiable conduct, including staying the proceeding until a petition forappointment of a guardian or issuance of a protective order is filed in a court of another statehaving jurisdiction; or

3. continue to exercise jurisdiction after considering:

a. the extent to which the ward or proposed ward and all persons required to be notified of the proceedings have acquiesced in exercise of the court’s jurisdiction;

b. whether the court is a more appropriate forum than the court of any other state afterconsidering the factors described by {Tex. Estates Code Sec. 1253.102}; and

c. whether the court of any other state would have jurisdiction under the factualcircumstances of the matter. {Tex. Estates Code Sec. 1253.151}

If a court of this state determines that it acquired jurisdiction of a proceeding for appointment ofa guardian of a person and/or estate (or a ward or proposed ward) because a party seeking toinvoke the court’s jurisdiction engaged in unjustifiable conduct, the court may assess against thatparty necessary and reasonable expenses, including attorney’s fees, investigative fees, court costs,communication expenses, witness fees and expenses, and travel expenses. The court may notassess fees, costs, or expenses against the state or a governmental subdivision, agency, orinstrumentality of Texas unless authorized by other law. {Tex. Estates Code Sec. 1253.152}

A judge of a statutory probate court, on the motion of a party or any person interested in theguardianship, may transfer to the judge’s own court a cause of action from a district court orstatutory county court that is related to a guardianship proceeding. The statutory probate judgemay also consolidate the transferred cause of action with the guardianship proceeding. {Tex.Estates Code Sec. 1022.007}

If an interested person contests an application for the appointment of a guardian of a minor orseeks the removal of a guardian of a minor, the court, on its own motion, may transfer all matters related to the guardianship proceeding to a court of competent jurisdiction in which a suitaffecting the parent-child relationship under the Family Code is pending. {Tex. Estates Code Sec. 1022.008}

VI. VENUE

Sec. 1023.001 of the Estates Code governs venue in guardianship actions.


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VI. VENUE D. Most Appropriate Forum

A. Guardianship of Minors

When both parents reside in a county, venue is in that county.

If the parents live in separate counties, venue is in the county where the sole managingconservator resides or in the county of the parent with greater physical custody when there is ajoint managing conservatorship.

If one parent is deceased, venue is in the county of residence of the surviving parent who hascustody.

If both parents are dead but the minor was in the custody of a deceased parent, venue is in thecounty in which the last surviving parent having custody resided.

If both parents are dead and have died in a common disaster and there is no evidence that theirdeaths were other than simultaneous, venue is in the county in which both deceased parentsresided at the time of their simultaneous deaths if they resided in the same county. {Tex. EstatesCode Sec. 1023.001}

B. Guardianship of Incapacitated Persons Other than Minors

Venue lies in the county:

1. where the proposed ward resides;

2. where he or she is located on the date the application is filed; or

3. where the principal estate of the proposed ward is located. {Tex. Estates Code Sec.1023.001}

C. Guardianship Where Appointee Provided for by Will

Venue lies in the county:

1. where the will was admitted to probate; or

2. where the appointee resides, if the appointee resides in this state. {Tex. Estates Code Sec.1023.001}

D. Venue in More Than One County

If more than one county has venue, the court in which the application was first filed and retainsexclusive jurisdiction. {Tex. Estates Code Sec. 1023.002}


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VI. VENUE A. Guardianship of Minors

E. Transfer of Venue

Absent a motion by an interested person, the probate court does not have authority to transfervenue to another county. {Tex. Estates Code Sec. 1023.002}; see also Robertson v. Gregory, 663S.W.2d 4 (Tex. App. - Houston [14th Dist.] 1983, no writ).

F. Evidence Establishing Venue

Testimony that an incapacitated person had been living in a county for a lengthy period of time is sufficient to establish venue. Loudd v. Davis, 650 S.W.2d 556 (Tex. App. - Houston [14th Dist.]1983, no writ).

G. Jurisdiction to Hear Venue Motion

The county court has jurisdiction to determine venue in a guardianship proceeding. {Tex. Estates Code Sec. 1023.002}; see also In re the Estate of Izer, 693 S.W.2d 481 (Tex. App. - Corpus Christi1985, writ ref’d n.r.e.).

H. Location of Hearing

The judge may hold a hearing on a guardianship matter involving an adult ward or adultproposed ward at any suitable location in the county in which the guardianship matter is pending. The hearing should be held in a physical setting that is not likely to have a harmful effect on theward or proposed ward. {Tex. Estates Code Sec. 1055.053}

On the request of the adult proposed ward, the adult ward, or the attorney of the proposed wardor ward, the hearing may not be held under the authority of this section at a place other than thecourthouse. {Tex. Estates Code Sec. 1055.053}

I. Transfer for Convenience of Guardian or Other Interested Person

When a guardian or any other person wants to transfer the business of the guardianship from one county to another, the person must file a written application in the court in which theguardianship is pending stating the reason for the request. {Tex. Estates Code Sec. 1023.003}

A statutory probate court, on the motion of a party of a person interested in the guardianship,may:

1. transfer to its own court from a district, county, or statutory court a cause of action that isrelated to a guardianship proceeding pending in the statutory probate court, including a causeof action that is a matter related to guardianship proceeding pending in the statutory probatecourt and in which the guardian, ward, or proposed ward in the pending guardianshipproceeding is a party; and


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VI. VENUE E. Transfer of Venue

2. consolidate the transferred cause of action with the guardianship proceeding to which itrelates and any other proceedings in the statutory probate court that are related to theguardianship proceeding. {Tex. Estates Code Sec. 1022.007}

Not later than the ninetieth day after a transfer of guardianship takes place under {Tex. EstatesCode Sec. 1023.007}, the court to which the guardianship was transferred must hold a hearing toconsider modifying the rights, duties, and powers of the guardian or any other provisions of thetransferred guardianship. {Tex. Estates Code Sec. 1023.010}

Notwithstanding any other provision of this chapter, the proper venue for an action by or against a guardian, ward, or proposed ward for personal injury, death, or property damages is determined under {Tex. Civ. Prac. & Remedies Code Sec. 15.007}. {Tex. Estates Code Sec. 1022.007}

VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN

A. Prior Selection or Selection by Minor Ward

In certain instances, the Probate Code allows for the selection of a guardian by a surviving parent or the ward.

1. Appointment by Surviving Parent

A surviving parent of a minor may by will or written declaration appoint a guardian of theperson of the minor to serve upon the death of the parent. Unless the court finds that theperson appointed is disqualified, is dead, refuses to serve, or would not serve the best interests of the minor, the court must appoint the person as guardian in preference to those otherwiseentitled to serve as guardian. If the guardian otherwise complies with requirements in theTexas Probate Code, the appointed person also is entitled to be guardian of the minor’s estateafter the death of the parent. {Tex. Estates Code Sec. 1104.053}

2. Selection by Minor over 12 Years

A minor who is at least 12 years old, in writing and with court approval, may select theguardian of her person or estate, or both, as long as the court finds that the choice is in theminor’s best interest. {Tex. Estates Code Sec. 1104.054(a)}

3. When another Guardian Previously Has Been Appointed

A minor who is 12 or older may select a replacement guardian of either the minor’s person orestate, or both, if the minor has a guardian appointed by the court or the minor has a guardian appointed by will or written declaration of the parent of the minor and that guardian dies,resigns, or is removed from guardianship. If the court is satisfied that the person selected is


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN I. Transfer for Convenience of Guardian or Other Interested Person

suitable and competent and that the appointment of the person is in the best interest of theminor, it must make the appointment and revoke the letters of guardianship of the formerguardian. The minor must make the selection by filing an application in open court in personor by attorney. {Tex. Estates Code Sec. 1104.054(b)}

4. Pre-need Designation

An adult with capacity may, by written declaration, designate a person to serve as his guardianin the event the declarant becomes incapacitated. {Tex. Estates Code Sec. 1104.202(a)} Thedeclarant may specifically disqualify named persons from serving as guardian. {Tex. EstatesCode Sec. 1104.202(b)}

Except as detailed below, the declaration must be attested by two witnesses and have aself-proving affidavit attached. {Tex. Estates Code Sec. 1104.203}, As an alternative to theself-proving affidavit, a declaration of guardianship may be self-proved by following thestatutory language set out in {Tex. Estates Code Sec. 1104.205}, and having the declarationsigned by a notary. A notarized declaration that follows the statutory language is consideredself-proved to the same extent as a declaration executed with a self-proving affidavit. {Tex.Estates Code Sec. 1104.205(b)} See a form for a self-proving affidavit at {Tex. Estates CodeSec. 1104.204} or alternative form at {Tex. Estates Code Sec. 1104.205}.

Effective Sept. 1, 2017, if a declaration does not expressly disqualify any person from servingas guardian of the declarant or the estate, the declaration must be signed by the declarant andmay be acknowledged by a notary public instead of being attested to in the declarant’spresence by witnesses. {Tex. Estates Code Sec. 1104.203(a-1)} A declaration that complieswith these requirements is considered self-proved. {Tex. Estates Code Sec. 1104.204(d)}

The declaration and affidavit are prima facie evidence that the declarant was competent at thetime of executing the declaration and that the guardian named in the declaration will serve thebest interests of the ward. {Tex. Estates Code Sec. 1104.203} The designation may berevoked in the manner provided for revocation of wills under {Tex. Estates Code Sec.253.002}; see also {Tex. Estates Code Sec. 1104.210}. If the declarant designates thedeclarant’s spouse as guardian, and they subsequently divorce, the designation has no effect.{Tex. Estates Code Sec. 1104.211}

B. Priority Right to Serve as Guardian

The best interest of the ward is the controlling consideration in the selection of a guardian. Inother words, any appointee must be able to protect the rights of the person and property of theward. This concept of the best interest of the ward stems from the policy considerations in Sec.1011.001 and the necessary findings in {Tex. Estates Code Sec. 1022.002(d)} that a court mustmake before it appoints a guardian. Additionally, if there are two equally entitled applicants, theissue as to which applicant is better qualified to serve the best interest of the ward is a question of


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN A. Prior Selection or Selection by Minor Ward

fact and may be determined by a jury. Carney v. Aicklen, 587 S.W.2d 507 (Tex. Civ. App. - Tyler1979, writ ref’d n.r.e.). With these considerations in mind the following rules in {Tex. EstatesCode Secs. 1104.051-.054} control, although subject to the disqualification provisions in {Tex.Estates Code Sec. 1104.351-.357}.

1. Guardian of Minors - Parents’ Priority

If the parents live together, both parents are the natural guardians of the person of the minorchildren by the marriage, and one of the parents is entitled to be appointed guardian of thechild’s estate. {Tex. Estates Code Sec. 1104.051(a)} However, “while a parent is the naturalguardian of a minor, he is only entitled to be appointed guardian of the minor’s estate, and has no absolute right to act for the minor, and has no authority to manage and control the minor’s estate.” Kaplan v. Kaplan, 373 S.W.2d 271 (Tex. Civ. App. - Houston [1st Dist.] 1963, no writ);Silber v. Southern Nat’l Life Ins. Co., 326 S.W.2d 715 (Tex. Civ. App. - San Antonio 1959, writref’d).

If the parents disagree as to which parent should be appointed, the court must make theappointment on the basis of which parent is better qualified to serve in that capacity. Likewise, if the parents do not live together and a contest arises, the court should assign theguardianship to the parent who the court finds would serve the best interest of the child.{Tex. Estates Code Sec. 1104.051} But see Cruz v. Scanlan, 682 S.W.2d 422 (Tex. App. -Houston [1st Dist.] 1984, no writ), in which appointment of a managing conservator by thedistrict court superseded appointment of a guardian of the person and Rowland v. Willy, 751S.W.2d 725 (Tex. App. - Houston [14th Dist.] 1988, no writ), in which the earlier appointment of a managing conservator preempted appointment of a guardian of the person.

The significance of these may have changed. If one parent is dead, the survivor is the naturalguardian of the person of the minor children and is entitled to be appointed guardian of theirestates. {Tex. Estates Code Sec. 1104.051(c)} The right of parents who do not live togetherare equal, and the guardianship of their minor children must be assigned to one or the other,considering only the best interests of the children. {Tex. Estates Code Sec. 1104.051}

2. Guardians of Orphans

If the last surviving parent did not appoint a guardian, the nearest ascendant in the direct lineof the minor is entitled to guardianship of both the person and estate of the minor. {Tex.Estates Code Sec. 1104.052(1)} Thus, a grandparent, absent disqualification, has thepreference and absolute right to be appointed guardian of his orphan grandchildren who areminors. Penny v. Hampton, 283 S.W. 599 (Tex. Civ. App. - Texarkana 1926, no writ)(grandparents appointed over uncle who was not blood kin). If two persons in the samedegree of ascendancy apply for guardianship, appointment will be made in the best interest ofthe minor. {Tex. Estates Code Sec. 1104.052(2)} If the minor has no ascendant in the directline, the nearest of kin must be appointed, and if there are two or more persons in the same


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN B. Priority Right to Serve as Guardian

degree of kinship, one must be appointed, according to the circumstances and considering thebest interests of the minor. {Tex. Estates Code Sec. 1104.052(3)} If no relative is eligible to be guardian of the minor, or if no eligible person applies to be guardian, the court must appointan eligible person. {Tex. Estates Code Sec. 1104.052(4)}

3. Guardian of Persons other than Minors

a. Spouse

The ward’s spouse, if eligible, is entitled to be guardian in preference to any otherperson. {Tex. Estates Code Sec. 1104.102(1)}; see also Novak v. Schellenberg, 669S.W.2d 162 (Tex. Civ. App. - Corpus Christi 1984, no writ) (spouse of incompetentward, if not disqualified, may have daughter of ward removed as guardian).

b. Nearest of Kin

If there is no eligible spouse, the ward’s nearest of kin is entitled to serve. {Tex.Estates Code Sec. 1104.102(2)}

c. Eligible Person

The court must appoint the eligible person who is best qualified to serve as guardianif:

(1) the ward’s spouse and the person nearest of kin refuse to serve;

(2) two or more persons entitled to serve by means of being the person nearest of kin are related in the same degree of kinship to the ward; or

(3) neither the ward’s spouse nor any person related to the ward is an eligibleperson. {Tex. Estates Code Sec. 1104.102(3)}

C. Only One Person To Be Appointed

Only one person can be appointed as guardian of the person or estate, unless the applicants arehusband and wife, co-guardians appointed under the laws of another state, joint managingconservators, or parents of an incapacitated adult (and the incapacitated adult has not been thesubject of a custody suit). There may be one person appointed guardian of the estate and anotheras guardian of the person. {Tex. Estates Code Sec. 1104.001}

A judge may not appoint anyone to serve as guardian unless the person has received training toeducate proposed guardians about their responsibilities as guardians, alternatives toguardianships, supports and services available to the proposed ward, and a ward’s bill of rightsunder {Tex. Estates Code Sec. 1151.351}. This training, offered by the Judicial Branch


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN B. Priority Right to Serve as Guardian

Certification Commission, must be made available for free to proposed guardians through onlinetraining, and also offered in written format on request. {Tex. Estates Code Sec. 155.204(a) andSec. 1104.003} Waiver of this training requirement is available only under the rules adopted bythe Texas Supreme Court under {Tex. Govt Code Sec. 155.203}. See {Tex. Estates Code Sec.1104.003}

D. Waiver

A person entitled to be guardian may waive that right by express declaration or by conduct.Waiver by conduct occurs when a party knows of another’s appointment and makes noobjection. Estate of Morris v. First Int’l Bank, 664 S.W.2d 132 (Tex. Civ. App. - San Antonio 1983,no writ). A written waiver may not be withdrawn as long as the guardian has not been removed.See generally “Guardianship and Conservatorship,” 42 Tex.Jur.3d 67, and cases cited therein.

E. Persons Disqualified to Serve as Guardians

A person who does not have (or maintain) the certification to serve as guardian required by {Tex. Estates Code Sec. 1104.251} is disqualified from serving as a guardian. {Tex. Estates Code Sec.1104.356} An individual with the Department of Aging and Disability Services or a volunteerwith the department is not required to be certified to provide guardianship services on theprogram’s or department’s behalf. {Tex. Estates Code Sec. 1104.254} Before removing theguardian, the court shall cite the guardian to appear and contest the removal request. {Tex.Estates Code Sec. 1203.052}

A person may not be appointed guardian if the person is:

1. a minor; (see {Tex. Estates Code Sec. 1104.351})

2. a person whose conduct is notoriously bad; (see {Tex. Estates Code Sec. 1104.353})

In Legler v. Legler, 37 S.W.2d 284 (Tex. Civ. App - Austin 1931, no writ), a husband’s conductin beating and abandoning his insane wife was held to be bad, and, therefore, he wasdisqualified, regardless of whether his conduct was notorious.

3. an incapacitated person; (see {Tex. Estates Code Sec. 1104.351})

4. a person who is a party to a lawsuit or whose father or mother is a party to a lawsuitconcerning or affecting the welfare of the proposed ward, unless the court determines that the lawsuit claim of the person who has applied to be appointed guardian does not conflict withthe lawsuit claim of the proposed ward or appoints a guardian ad litem to represent theproposed ward throughout the litigation of the ward’s lawsuit claim; (see {Tex. Estates CodeSec. 1104.354})


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN C. Only One Person To Be Appointed

See also Mireles v. Alvarez, 789 S.W.2d 947 (Tex. App. - San Antonio 1990, writ denied)(husband disqualified as guardian because he was a party to the personal injury action filedindividually and as next friend for his incompetent wife, and the welfare of the wife coulddepend on the outcome of that lawsuit); Sheen v. Sheen, 244 S.W. 286 (Tex. Civ. App. - Austin1922, no writ) (wife dismissed her divorce action against her incompetent husband before herappointment as guardian); Sparkman v. Stout, 212 S.W. 526 (Tex. Civ. App. - El Paso 1919, writ ref’d).

PRACTICE NOTE: An ad litem attorney should always inquire into the circumstancescausing the incapacity or creating the need for a guardianship because quite often there is aplan in place to file a personal injury or wrongful death suit by the proposed guardian in his or her own individual capacity and as guardian of another.

5. persons indebted to the proposed ward (unless the debt is paid prior to appointment); (see{Tex. Estates Code Sec. 1104.354})

An uncle named as guardian of minor children in their deceased father’s will was disqualifiedbecause he was the surviving partner of the deceased and had drawn upon the partnershipaccount, thus making him indebted to the estate of which the children were devisees. In reGuardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App. - Corpus Christi 1977, writ ref’d n.r.e.); see also Phillips v. Phillips, 511 S.W.2d 748 (Tex. Civ. App. - San Antonio 1974, no writ).

6. a person asserting a claim adverse to the proposed ward or the proposed ward’s property,real or personal; (see {Tex. Estates Code Sec. 1104.354})

In Penny v. Hampton the grandfather of minors was held disqualified because his wife, theminors’ grandmother, was claiming war risk insurance proceeds on her deceased son to whichthe minors could also make a claim. Penny v. Hampton, 283 S.W. 599 (Tex. Civ. App. -Texarkana 1926, no writ). In Dobrowolski v. Wyman, 397 S.W.2d 930 (Tex. Civ. App. - SanAntonio 1965, no writ), an incompetent wife had commingled her separate estate withcommunity assets and a complete accounting was necessary to determine the status of herseparate funds. The court determined that the husband’s interest was in conflict; therefore, hewas disqualified from serving as guardian.

7. persons who lack experience or education to manage properly the ward’s estate; (see {Tex.Estates Code Sec. 1104.356})

In analyzing this provision, the court in Blackburn v. Gantt, 561 S.W.2d 269 (Tex. Civ. App. -Houston [1st Dist.] 1978, no writ), held:

a. Former Sec. 110(g) of the Probate Code did not require that the guardian of an estate ofan incompetent be knowledgeable in probate law, be an expert in business management, or


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN E. Persons Disqualified to Serve as Guardians

be experienced in investing money. The question is whether by reason of lack ofexperience

or education or other good reason the applicant is incapable of properly and prudently managing the estate with appropriate expert assistance. The question is not whether another applicant is morecapable of managing and controlling the estate. The legislative intention that preference be given tothe closest relative of the incompetent person who has made application for the guardianship isclear. The policy of appointing only those with experience in managing large business affairs or large sums of money as the guardian of the estates of those having substantial assets would frustrate theintention of the legislature.

b. In acquiring, investing, reinvesting, exchanging, retaining, selling, supervising, andmanaging a ward’s estate, a guardian of the estate must exercise the judgment and careunder the circumstances then prevailing that persons of ordinary prudence, discretion, andintelligence exercise in the management of their own affairs, considering the probableincome from as well as the probable increase in value and the safety of their capital. Theguardian must also consider all other relevant factors, including:

(1) the anticipated costs of supporting the ward;

(2) the ward’s age, education, current income, ability to earn additional income, networth, and liabilities;

(3) the nature of the ward’s estate; and

(4) any other resources reasonably available to the ward. {Tex. Estates Code Sec.1161.002}

PRACTICE NOTE: In a contest under the lack of experience or education disqualification,the attorney for the proposed guardian should always ask for an instruction in conformity with the Blackburn decision.

8. a person, institution, or corporation found unsuitable by the court; (see {Tex. Estates CodeSec. 1104.352})

9. a person disqualified in a declaration made under Sec. 1104.201;

10. a nonresident person who has not filed with the court the name of the resident agent toaccept service of process in all actions or proceedings relating to guardianship; (see {Tex.Estates Code Sec. 1104.357})

11. a person who does not have the certification to serve as guardian that is required by {Tex.Estates Code Sec. 1104.356}; or


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12. a person found to have committed family violence who is subject to a protective orderissued under {Tex. Fam. Code Chapter 85}. {Tex. Estates Code Sec. 1104.358}

F. Presumption Concerning Best Interest

It is presumed not to be in the best interests of a ward to appoint a person as guardian of theward if the person has been finally convicted of any sexual offense, sexual assault, aggravatedassault, aggravated sexual assault, injury to a child, to an elderly individual, or to a disabledindividual, abandoning or endangering a child, incest, terroristic threat, or continuous violenceagainst the family of the ward or incapacitated person. {Tex. Estates Code Sec. 1104.353(b)}

G. Non-resident Guardian

A non-resident is not disqualified to serve as guardian as long as the non-resident has filed withthe court the name of a resident agent to accept service of process. {Tex. Estates Code Sec.1104.357} In Ramirez v. Garcia de Bretado, 547 S.W.2d 717 (Tex. Civ. App. - El Paso 1977, nowrit), a maternal grandmother who had priority over a paternal uncle was not disqualified eventhough she was a resident of Mexico. The court added that the burden of proving thedisqualification of a person having a prior right to be guardian is upon the person challenging thequalification.

H. Application for Appointment of Guardian

1. Application Requirements

Any person may apply in writing for the appointment of a guardian. {Tex. Estates Code Sec.1101.001(a)}

Prior to 2003, former Probate Code Sections 682(10) and (12) required the names andaddresses of certain persons (for example, a minor ward’s parents) to be listed, but it did notstate what should happen if this information was not known. So in a case of a child who wasabandoned by one of his or her parents, some courts found the failure of the applicant for aguardianship to list that parent’s address in the application (even though the address was notknown) was an impediment to getting a guardianship. Current law provides that theinformation about family members must be stated “if known by the applicant.” {Tex. EstatesCode Sec. 1101.001(b)(2)}

2. Application Contents

Any person may commence a proceeding for the appointment of a guardian by filing a written application in a court having jurisdiction and venue. The application must be sworn to by theapplicant and state:


Guardianship - 22


(1) the name, sex, date of birth, and address of the proposed ward;

(2) the name, relationship, and address of the person the applicant desires to haveappointed as guardian;

(3) whether guardianship of the person or estate, or both, is sought;

(4) whether alternatives to guardianship and available

supports and services to avoid guardianship were considered;

(5) whether alternatives to guardianship and supports and services available to theproposed ward considered are feasible and would avoid the need for a guardianship;

(6) the nature and degree of the alleged incapacity, the specific areas of protectionand assistance requested, and the limitation or termination of rights requested to beincluded in the court’s order of appointment, including a termination of:

(a) the right of a proposed ward who is 18 years or older to vote in a publicelection;

(b) the proposed ward’s eligibility to hold or obtain a driver’s license; and

(c) the right of a proposed ward to make personal decisions regarding residence;

(7) the facts requiring that a guardian be appointed;

(8) the interest of the applicant in the appointment;

(9) the nature and description of any guardianship of any kind existing for theproposed ward in any other state;

(10) the name and address of any person or institution having the care and custodyof the proposed ward;

(11) the approximate value and description of the proposed ward’s property,including any compensation, pension, insurance, or allowance to which the proposed ward may be entitled;

(12) the name and address of any person whom the applicant knows to hold a power of attorney signed by the proposed ward and a description of the type of power ofattorney;


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN H. Application for Appointment of Guardian

(13) if the proposed ward is a minor and if known by the applicant:

(a) the name of each parent of the proposed ward and state the parent’s addressor that the parent is deceased;

(b) the name and age of each sibling, if any, of the proposed ward and state thesibling’s address or that the sibling is deceased; and

(c) if each of the proposed ward’s parents and adult siblings are deceased, thenames and addresses of the proposed ward’s other living relatives who are relatedto the proposed ward within the third degree by consanguinity and who areadults;

(14) if the proposed ward is a minor, whether the minor was the subject of a legal orconservatorship proceeding within the preceding two-year period and, if so, thecourt involved, the nature of the proceeding, and the final disposition, if any, of theproceeding;

(15) if the proposed ward is an adult and if known by the applicant:

(a) the name of the proposed ward’s spouse, if any, and state the spouse’s addressor that the spouse is deceased;

(b) the name of each of the proposed ward’s parents and state the parent’saddress or that the parent is deceased;

(c) the name and age of each of the proposed ward’s siblings, if any, and state thesibling’s address or that the sibling is deceased;

(d) the name and age of each of the proposed ward’s children, if any, and state the child’s address or that the child is deceased; and

(e) if the proposed ward’s spouse and each of the proposed ward’s parents, adultsiblings, and adult children are deceased, or, if there is no spouse, parent, adultsibling, or adult child, the names and addresses of the proposed ward’s otherliving relatives who are related to the proposed ward within the third degree byconsanguinity and who are adults;

(16) facts showing that the court has venue over the proceeding; and

(17) if applicable, that the person whom the applicant desires to have appointed as aguardian is a private professional guardian who is certified under Subchapter C,


Guardianship - 24


Chapter 111, Government Code, and has complied with the requirements of Sec.1104.203. (see {Tex. Estates Code Sec. 1101.001(b)}

An application may omit the address of a person named within it if:

(1) the application states that the person is protected by a protective order under{Tex. Fam. Code Chapter 85};

(2) a copy of the protective order is attached to the application as an exhibit;

(3) the application states the courts in which the person resides;

(4) the application indicates where notice or issuance and service of citation on theperson may be made or sent; and

(5) the application is accompanied by a request for an order under {Tex. EstatesCode Sec. 1051.201} specifying the manner of issuance, service, and return ofcitation or notice on the person. {Tex. Estates Code Sec. 1101.002}

3. Court’s Initiation of Guardianship Proceedings

If the court has probable cause to believe that a person living or found in the county in whichthe court is located is incapacitated, and the person does not have a guardian in Texas, thecourt must appoint a guardian ad litem or a court investigator to investigate the person’sconditions and circumstances to determine whether the person is in fact incapacitated and, ifso, whether a guardianship is necessary. If this is the case, the guardian ad litem or investigator must file an application for appointment of a guardian of the person and/or estate. {Tex.Estates Code Sec. 1102.001(a)}

If a court appoints a guardian ad litem or a court investigator, the court’s order must include astatement that the person believed to be incapacitated has the right to petition the court to setthe appointment aside. {Tex. Estates Code Sec. 1102.001(b)(1)}

At the initial meeting between the guardian ad litem or court investigator and the personbelieved to be incapacitated, the ad litem or investigator shall provide a copy of theinformation letter under Section 1102.003 and the order to the meeting and discuss thecontents of the letter and order with the person believed to be incapacitated. {Tex. EstatesCode Sec. 1102.001(b)(2)}

Between the date of the initial meeting and the date an application for the appointment of aguardian is filed, the person believed to be incapacitated may petition the court to have theappointment of the guardian ad litem or court investigator set aside. {Tex. Estates Code Sec.1102.001(b)(3)}


Guardianship - 25


4. Establishing Probable Cause

To establish probable cause under Sec. 1102.001-002, the court may require either aninformation letter about the person believed to be incapacitated that is submitted by aninterested person and satisfies the requirements of Sec. 1102.003 or a written letter orcertificate from a physician who has examined the person believed to be incapacitated thatsatisfies the requirements of Sec. 1101.103. The letter must be dated no earlier than 120 daysbefore a guardian ad litem or investigator is appointed to look into the potentiallyincapacitated person’s living arrangements. Any physician’ letter must be based on anexamination by physician performed no more than 120 days earlier. (see {Tex. Estates CodeSec. 1102.001}

5. Information Letter

An interested person who submits an information letter under {Tex. Estates Code Sec.1102.002(1)} about a person believed to be incapacitated must, to the best of the person’sknowledge:

a. state the name, address, telephone number, county of residence, and date of birthof the person;

b. state whether the residence of the person is a private residence, health care facility, or other type of residence;

c. describe the relationship between the interested person and the person;

d. state the names and telephone numbers of any known friends and relatives of theperson;

e. state whether a guardian of the person or estate of the person has been appointedin this state;

f. state whether the person has executed a power of attorney and, if so, the designee’s name, address, and telephone number;

g. describe any property of the person, including the estimated value of thatproperty;

h. list any amount and sources of monthly income of the person; and

i. describe the nature and degree of the person’s alleged incapacity and;


Guardianship - 26


j. include a statement of whether the person is in imminent danger of seriousimpairment to the person’s physical health, safety, or estate. {Tex. Estates Code Sec.1102.003}

An information letter that is submitted by a family member must:

a. be signed and sworn before a notary public by the interested person; or

b. include a written declaration signed under penalty of perjury that the informationcontained in the letter is true to the best of the person’s knowledge. {Tex. EstatesCode Sec. 1102.003(b)}

6. Adults

If the guardianship is being sought for an adult, the application must contain the name andaddress of that person’s spouse, brother, sister, and children (as well as the ages of any siblings and children) if the applicant knows that information. If the person has none of those relatives living, then the applicant must list other living relatives who are related to the proposed wardwithin the third degree by consanguinity and who are adults. {Tex. Estates Code Sec.1101.001(b)(12)}

7. Minors

If the proposed ward is a minor, the application must include information about whether theminor was the subject of a legal or conservatorship proceeding within the preceding two-yearperiod and, if so, the court involved, the nature of the proceeding, and any final disposition.{Tex. Estates Code Sec. 1101.001(b)(11)}

8. Sworn Application

All applications for appointment of a guardian must be sworn to by the applicant. {Tex.Estates Code Sec. 1101.001(b)}

9. Person Requiring Guardianship after the Ward is no Longer a Minor

If a minor, because of incapacity, will require a guardianship after the ward becomes an adult,a person may file an application under Sec. 1101.001 for the appointment of a guardian of theperson or the estate, or both, of the proposed ward not earlier than the 180th day before theproposed ward’s 18th birthday. If the application is heard before the proposed ward’s 18thbirthday, a guardianship created may not take effect and the person appointed guardian maynot give a bond or take the oath as required under Sec. 1105.051 or 1105.101 until theproposed ward’s 18th birthday. {Tex. Estates Code Sec. 1103.003}


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This attempted guardianship is settled and closed if the court determines, after a hearing onthe application, that the appointment of a guardian is unnecessary or the guardian appointedby the court after a hearing has qualified under Sec. 1105.002. {Tex. Estates Code Sec.1103.004}

Under Sec. 1105.002 a guardian is deemed to have duly qualified when the guardian has takenand filed the oath required under {Tex. Estates Code Sec. 1105.051}, has made the requiredbond, and has filed it with the clerk, and has the bond approved by the judge. A guardian who is not required to make bond is deemed to have duly qualified when the guardian has takenand filed the required oath. {Tex. Estates Code Sec. 1105.002}

I. Notice

1. Posting

On the filing of an application for guardianship, notice must be issued and served as providedten days prior to the date of hearing. {Tex. Estates Code Sec. 1051.053}

The court clerk must issue a citation stating that the application for guardianship was filed, the name of the proposed ward, the name of the applicant, and the name of the person to beappointed guardian as provided in the application, if that person is not the applicant. Thecitation must cite all persons interested in the welfare of the proposed ward to appear at thetime and place stated in the notice if they with to contest the application.

The citation must contain a clear and conspicuous statement informing any interested personof the right to be notified of all motions, applications and pleadings relating to the applicationfor guardianship or any subsequent guardianship proceeding involving that ward after theguardianship is created. The citation must be posted. {Tex. Estates Code Sec. 1051.102(d)}

The county clerk need no longer serve the citation when an application for a guardianship isfiled. Rather, the applicant is required to send the notice to the listed persons by certified mailand file proof of delivery with the court. Any relative within the third degree by consanguinityrequired to be listed on the application by Sec. 1101.001(10) or (12) also must receive thisnotice, if the ward’s spouse, parents, adult siblings, and adult children are deceased or if thereis no spouse, parent, adult sibling or adult child. This does not change the requirement ofpersonal service on the proposed ward.

2. Personal Service

The sheriff or other officer must personally serve citation to appear and answer theapplication for guardianship on:

a. a proposed ward who is 12 years old or older;


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b. the parents of a proposed ward if the whereabouts of the parents are known orcan be reasonably ascertained;

c. any court-appointed conservator or person having control of the care and welfareof the proposed ward;

d. a proposed ward’s spouse if the whereabouts of the spouse are known or can bereasonably ascertained; and

e. the person named in the application to be appointed to guardian, if that person isnot the applicant. {Tex. Estates Code Sec. 1051.051}

3. Return of Citation

The return of citation in the guardianship of an incapacitated person must be on file for tendays, not including the day of filing and the day of judgment, before a default judgment maybe entered. Sublett v. Black, 617 S.W.2d 754 (Tex. App. - Houston [14th Dist.] 1981, writdism’d w.o.j.); {Tex. R. Civ. P. 107}

4. Waiver

A competent person who is interested in a hearing in a guardianship proceeding, in person orby attorney, may waive in writing notice of the hearing. A consul or other representative of aforeign government, whose appearance has been entered as provided by law on behalf of aperson residing in a foreign country, may waive notice on behalf of the person. A person whosubmits to the jurisdiction of the court in a hearing is deemed to have waived notice of thehearing. {Tex. Estates Code Sec. 1051.251}

5. Notice to Interested Persons

{Tex. Estates Code Sec. 1051.104(a)} requires notice upon the following persons, if theirwhereabouts are known or can be reasonably discovered:

a. all adult siblings and all adult children of a proposed ward;

b. the administrator of a nursing home facility or similar facility in which theproposed ward resides;

c. the operator of a residential facility in which the proposed ward resides;

d. a person whom the applicant knows to hold a power of attorney signed by theproposed ward;


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN I. Notice

e. a person designated to serve as guardian of the proposed ward by a writtendeclaration under Sec. 1104.201 of the Estates Code, if the applicant knows of theexistence of the declaration;

f. a person designated to serve as guardian of the proposed ward in the probated willof the last surviving parent of the ward;

g. a person designated to serve as guardian of the proposed ward by a writtendeclaration of the proposed ward’s last surviving parent, if the declarant is deceasedand the applicant knows of the existence of the declaration; and

h. any adult named in the application as a living relative of the proposed ward withinthe third degree of consanguinity, required to be listed on the application by {Tex.Estates Code Sec. 1101.001(b)(11) & (13)}, if the ward’s spouse, parents, adultsiblings, and adult children are deceased or if there is no spouse, parent, adult siblingor adult child. Relatives within the third degree of consanguinity include agrandparent, grandchild, great-grandparent, great-grandchild, great-aunt or -uncle,nephew or niece. {Tex. Estates Code Sec. 1101.001}

Effective June 15, 2017, notice provided to a relative of the proposed ward must contain astatement notifying the relative that, if a guardianship is created for the proposed ward, therelative must elect in writing to receive notice about the ward under {Tex. Estates Code Sec.1151.056}. {Tex. Estates Code Sec. 1051.104(d)}

PRACTICE NOTE: The applicant’s attorney should obtain the appropriate waivers underthese notice provisions and/or notify the appropriate persons under the mail requirementsrather than rely on the clerk to provide the notice.

6. Service on Attorney

If an attorney has entered an appearance on record for a party in a guardianship proceeding, acitation or notice required to be served on the party must be served on the attorney. Serviceon the attorney of record is in lieu of service on the party for whom the attorney appears.{Tex. Estates Code Sec. 1051.055}

7. Attorney Ad Litem

In a proceeding for the appointment of a guardian for a person, the court must appoint anattorney ad litem to represent the interests of the proposed ward. {Tex. Estates Code Sec.1054.001} To be eligible for appointment as an attorney ad litem, a person must have thecertification required by Sec. 1054.201. {Tex. Estates Code Sec. 1054.201(b)} An attorney foran applicant for guardianship and a court-appointed attorney in any guardianship proceedingmust be certified by the State Bar of Texas or a person or other entity designated by the State


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Bar as having successfully completed a course of study in guardianship law and proceduresponsored by the State Bar or its designee. {Tex. Estates Code Sec. 1054.201(a)}

Sec. 1054.006 provides that the following people may at any time retain an attorney who holds certification required by Sec. 1054.201 to represent the person’s interests in a guardianshipmatter instead of having an attorney ad litem appointed:

a. a ward who retains the power to enter into a contract under the terms of theguardianship; and

b. a proposed ward for purposes of a proceeding for appointment of a guardian, aslong as the proposed ward has capacity to contract. {Tex. Estates Code Sec.1054.006(a)}

If the court finds that the ward or proposed ward has the capacity to contract, the court mayremove an attorney ad litem previously appointed and appoint the retained counsel instead.{Tex. Estates Code Sec. 1054.006(b)}

The term of appointment of an attorney ad litem appointed under this section continues afterthe court appoints a temporary guardian under {Tex. Estates Code Sec. 1251.001} unless acourt order provides for the termination or expiration of the attorney ad litem’s appointment.{Tex. Estates Code Sec. 1054.002}

8. Duties of Attorney Ad Litem

An attorney ad litem appointed to represent a proposed ward must, within a reasonable timebefore the hearing, interview the proposed ward. To the greatest extent possible, the attorneymust discuss with the proposed ward the law and facts of the case, the proposed ward’s legaloptions regarding the disposition of the case, the grounds on which guardianship is sought,and whether alternatives to guardianship would meet the needs of the proposed ward andavoid the need for appointment of a guardian. {Tex. Estates Code Sec. 1054.004(a)}

Before the hearing, the attorney must review the application for guardianship, certificates ofcurrent physical, medical, and intellectual examinations, and all of the proposed ward’srelevant medical, psychological, and intellectual testing records. {Tex. Estates Code Sec.1054.005(b)}

Before the hearing, the attorney ad litem also must discuss with the proposed ward theattorney ad litem’s opinion on whether a guardianship is necessary, and if a guardianship isnecessary, the specific powers or duties of the guardian that should be limited if the proposedward receives supports and services. {Tex. Estates Code Sec. 1054.004(c)}


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J. Hearing

Guardianship hearings are subject to the Texas Rules of Civil Procedure and the Texas Rules ofEvidence. {Tex. Estates Code Sec. 1055.101} Additionally, hearings should be conducted on therecord (i.e., with a court reporter present to transcribe) to preserve the ward’s right to appeal anydecision.

1. Examinations and Reports

The court may not grant an application to create a guardianship for an incapacitated person,other than a minor, person whose alleged incapacity is intellectual disability, or person forwhom it is necessary to have a guardian appointed only to receive funds from a governmentalsource, unless the applicant presents to the court a written letter or certificate from a physician dated not earlier than the 120th day before the date of the filing of the application and basedon an examination the physician performed not earlier than the 120th day before theapplication was filed. {Tex. Estates Code Sec. 1101.103(a)}

The letter or certificate must:

(1) describe the nature, degree, and severity of the proposed ward’s incapacity,including any functional deficits regarding the proposed ward’s ability to:

(A) handle business and managerial matters;

(B) manage financial matters;

(C) operate a motor vehicle;

(D) make personal decisions regarding residence, voting, and marriage; and

(E) consent to medical, dental, psychological, or psychiatric treatment;

(2) in providing a description regarding the proposed ward’s ability to operate amotor vehicle and make personal decisions regarding voting, state whether in thephysician’s opinion the proposed ward:

(A) has the mental capacity to vote in a public election; and

(B) has the ability to safely operate a motor vehicle;

(3) provide an evaluation of the proposed ward’s physical condition and mentalfunctioning and summarize the proposed ward’s medical history if reasonablyavailable;


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN J. Hearing

(4) in providing an evaluation under Subdivision (3), state whether improvement inthe proposed ward’s physical condition and mental functioning is possible and, if so,state the period after which the proposed ward should be reevaluated to determinewhether a guardianship continues to be necessary;

(5) state how or in what manner the proposed ward’s ability to make or communicate responsible decisions concerning himself or herself is affected by the proposedward’s physical or mental health, including the proposed ward’s ability to:

(A) understand or communicate;

(B) recognize familiar objects and individuals;

(C) solve problems;

(D) reason logically; and

(E) administer to daily life activities with and without supports and services;

(6) state whether any current medication affects the proposed ward’s demeanor orthe proposed ward’s ability to participate fully in a court proceeding;

(7) describe the precise physical and mental conditions underlying a diagnosis of a mental disability, and state whether the proposed ward would benefit fromsupports and services that would allow the individual to live in the least restrictive setting;

(8) state whether a guardianship is necessary for the proposed ward and, if so,whether specific powers or duties of the guardian should be limited if theproposed ward receives supports and services; and

(9) include any other information required by the court. {Tex. Estates Code Sec.1101.103(b)}

If the letter or certificate includes information stating that the ward had a possibility forimprovement in physical or mental functioning, and if the letter recommended a period of less than a year before re-evaluation to determine the continued necessity for a guardianship, thejudge’s order must include the date by which the guardian must submit to the court anupdated letter or certificate on the ward’s condition. {Tex. Estates Code Sec. 1101.153}

PRACTICE NOTE: A guardian applicant’s lawyer should ascertain from the attorney ad litem whether there will be any objection to the medical evaluation. Medical evaluations are subject


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to hearsay and confidentiality rules. There is an exception to hearsay, but the proper predicatemust be laid before admission.

2. Contest

a. Who May Contest?

Any person, including a former guardian who has been removed, may commenceany guardianship proceeding including a proceeding for complete restoration of award’s capacity or modification of a ward’s guardianship, or may contest theappointment of a guardian. {Tex. Estates Code Sec. 1055.001(a)} However, a person who has an interest adverse to the proposed ward may not file an application tocreate a guardianship, contest the creation of a guardianship, contest theappointment of a person as guardian of the ward, or contest an application forcomplete restoration of a ward’s capacity or modification of a ward’s guardianship.{Tex. Estates Code Sec. 1055.001(b)}

b. Jury Trial

A jury trial is not required for an adjudication of incompetency and appointment of a qualified guardian. {Tex. Estates Code Sec. 1055.052} If requested, however, a jurytrial must be granted. {Tex. Estates Code Sec. 55.002} and {Tex. Estates Code Sec.1055.052}; see also Fitzgerald v. Bonham, 247 S.W.2d 265 (Tex. Civ. App. - Galveston1952, writ ref’d n.r.e.); Henderson v. Applegate, 203 S.W.2d 548 (Tex. Civ. App. - FortWorth 1947, writ ref’d n.r.e.). If the incompetency issue is submitted to the jury, thecourt may not suggest in its questions to the jury that the issue has been previouslydecided. In Ulrickson v. Hawkins, 696 S.W.2d 704 (Tex. App. - Fort Worth 1985, writref’d n.r.e.), the court held it was error to submit the issue, “Do you find from apreponderance of the evidence that Eunice Mae Hawkins remains a person ofunsound mind?” In this case, the ward had been under a temporary guardianship.The appellate court concluded that where “the threshold question is whether theprospective ward is a person of unsound mind, this issue requires submissionuntainted by a disclosure of temporary rulings on such issue.”

c. Burden of Proof

There are two different burdens of proof in a guardianship proceeding. A clear andconvincing standard applies to some things, while a preponderance of the evidencestandard applies to others. {Tex. Estates Code Sec. 1101.101(a)} See the sectionentitled ‘Burden of Proof for Appointing Guardian’ on pg. 32.


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d. Prior Right

Any person has the right to commence any guardianship proceeding, including aproceeding for complete restoration of a ward’s capacity or modification of a ward’sguardianship, or to appear and contest any guardianship proceeding or theappointment of a particular person as guardian, unless a person who has an interestthat is adverse to a proposed ward or incapacitated person. {Tex. Estates Code Sec.1055.001(a)}

e. Mediation

On the written agreement of the parties or on the court’s own motion, the court may refer a contested guardianship to mediation. {Tex. Estates Code Sec. 1055.151(a)}However, the court may decline to enter a judgment on a mediated settlementagreement if the court finds the agreement is not in the ward’s or proposed ward’sbest interests. {Tex. Estates Code Sec. 1055.151(d)}

K. Burden of Proof for Appointing Guardian

Before appointing a guardian, the court must find by clear and convincing evidence:

1. that the proposed ward is an incapacitated person;

2. it is in the best interest of the proposed ward to have the court appoint a person asguardian;

3. the rights of the proposed ward or the proposed ward’s property will be protected by theappointment of a guardian;

4. alternatives to guardianship that would avoid the need for appointment of a guardian havebeen considered and determined not to be feasible; and

5. supports and services available to the proposed ward that would avoid the need forappointment of a guardian have been considered and determined not to be feasible. {Tex.Estates Code Sec. 1101.101(a)(1)}

Before appointing a guardian, the court must find by a preponderance of the evidence:

1. that the court has venue;

2. that the person to be appointed guardian is eligible to act as guardian and is entitled toappointment, or, if no eligible person entitled to appointment applies, that the personappointed is a proper person to act as a guardian;


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3. in the case of a minor, that the guardianship is not created for the primary purpose ofenabling the minor to establish residency for enrollment in a school in which the minor would not otherwise be entitled; and

4. the proposed ward is totally without capacity as provided by this code to care for himself or herself and to manage the individual’s property, or the proposed ward lacks the capacity to dosome, but not all of the tasks necessary to care for himself or herself or to manage theindividual’s property. {Tex. Estates Code Sec. 1101.101(a)(2)}

A finding that the proposed ward lacks the capacity to do some, but not all, of the tasks necessary for self-care and managing property must specifically state whether the proposed ward lacks thecapacity, or lacks sufficient capacity with supports and services, to make personal decisionsregarding residence, voting, operating a motor vehicle, and marriage. {Tex. Estates Code Sec.1101.101(c)}

If the court finds that the proposed ward is totally without capacity to care for himself orherself, manage his or her property, operate a motor vehicle, make personal decisionsregarding residence, and vote in apublic election, the court may appoint a guardian of theproposed ward’s person or estate, or both, with full authority over the incapacitated personexcept as provided by law. {Tex. Estates Code Sec. 1101.151(a)}

An order appointing a guardian under this section must contain findings of fact and specify:

(1)the information required by Section 1101.153(a);

(2)that the guardian has full authority over the incapacitated person;

(3)if necessary, the amount of funds from the corpus of the person’s estate the court will allow the guardian to spend for the education and maintenance of the person under Subchapter A,Chapter 1156;

(4)whether the person is totally incapacitated because of a mental condition;

(5)that the person does not have the capacity to operate a motor vehicle, make personaldecisions regarding residence, and vote in a public election; and

(6)if it is a guardianship of the person of the ward or of both the person and the estate of theward, the rights of the guardian with respect to the person as specified in Section1151.051(c)(1). {Tex. Estates Code Sec. 1101.151(b)}

If the court finds that the proposed ward lacks the capacity to do some, but not all, of the tasksnecessary to care for himself or herself or to manage his or her property with or without supports and services, the court may appoint a guardian with limited powers and permit the proposed


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN K. Burden of Proof for Appointing Guardian

ward to care for himself or herself, including making personal decisions regarding residence, or to manage his or her property commensurate with the proposed ward’s ability. {Tex. Estates CodeSec. 1101.152(a)}

An order appointing a guardian under this section must contain findings of fact and specify:

(1)the information required by Section 1101.153(a);

(2)the specific powers, limitations, or duties of the guardian with respect to the person’s careor the management of the person’s property by the guardian;

(3)the specific rights and powers retained by the person:

(A)with the necessity for supports and services; and

(B)without the necessity for supports and services;

(4)if necessary, the amount of funds from the corpus of the person’s estate the court will allow the guardian to spend for the education and maintenance of the person under Subchapter A,Chapter 1156; and

(5)whether the person is incapacitated because of a mental condition and, if so, whether theperson:

(A)retains the right to make personal decisions regarding residence or vote in a publicelection; or

(B)maintains eligibility to hold or obtain a drivers license. {Tex. Estates Code Sec.1101.152(b)}

L. Bond

1. Purpose

The requirement of a surety bond is to protect the ward against mismanagement, waste, andfraud by the guardian. Gabriel v. Snell, 613 S.W.2d 810 (Tex. Civ. App. - Houston [14th Dist.]1981, no writ).

At the time or after an order appointing a guardian is signed by the court but before letters ofguardianship are issued, on a party’s request, a court may require the deposit for safekeepingof cash, securities, or other assets of a ward or proposed ward in a financial institution. {Tex.Estates Code Sec. 1101.156(a)}


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN K. Burden of Proof for Appointing Guardian

If the court requires a deposit for safekeeping, the amount of bond required from theguardian shall be reduced in proportion to the amount of cash or the value of the securities ofother assets deposited. {Tex. Estates Code Sec. 1101.156(b)}

2. When No Bond Required

A bond is required, unless the Probate Code provides otherwise. {Tex. Estates Code Sec.1105.101(a)} The following are the only statutory exemptions from posting bond:

a. Guardian Appointed by Will

If the surviving parent appoints a guardian of a minor child in a will or by writtendeclaration and the will or the written declaration directs that the guardian of aperson be appointed to serve without bond, no bond can be required. The court,however, may not waive the requirement of a bond for the guardian of the estate ofthe ward, regardless of whether a surviving parent’s will or written declaration directs the court to waive the bond. {Tex. Estates Code Sec. 1105.101(d)}

b. Corporate Fiduciary as Guardian

If a bank or trust company is the guardian, no bond is required. {Tex. Estates CodeSec. 1105.101(b)(1)}

c. Guardianship Program

If a guardianship program operated by a county (regardless of the size of the county)is the guardian, no bond is required. {Tex. Estates Code Sec. 1105.101(b)(2)}

3. Guardian of the Person Only

The guardian of the person must obtain a bond in an amount fixed by the court. There is noprovision for the waiver of bond for a guardian of the person. {Tex. Estates Code Sec.1105.101}

4. Guardian of the Estate

a. Evidence Presented

The court must hear evidence on the assets of the estate, including all cash,anticipated revenue for twelve months, value of all personal property, and debts duethe estate. {Tex. Estates Code Sec. 1105.153}


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN L. Bond

b. Amount of Bond

The bond is fixed in an amount equal to the estimated value of all personal propertybelonging to the ward plus all anticipated revenue for twelve months, exclusive ofsocial security payments and assets placed in safekeeping. {Tex. Estates Code Sec.1105.154}

5. Sureties

The sureties on the bond may be either personal sureties or corporate sureties. {Tex. EstatesCode Sec. 1105.160(a)} One writer has noted that most courts in metropolitan countiesrequire a corporate surety bond. Cross, “Opening and Administering the TexasGuardianship,” 11 S.Tex.L.J. 60, 67 (1969).

a. Personal Sureties

If the sureties are natural persons, each personal surety must submit an affidavit tothe court setting out his or her non-exempt, total worth, which must be at leastdouble the amount of the bond. The affidavit must be attached to the bond. {Tex.Estates Code Sec. 1105.201(b)} (NOTE: Exempt personal property value is limitedto $60,000 for families and $30,000 for individuals.) {Tex. Prop. Code Sec. 42.001}

b. Authorized Corporate Surety

If the surety on the bond is an authorized corporate surety, as defined in {Tex.Estates Code Sec. 1002.003}, only one surety is required; however, the court mayrequire more than one corporate surety if the bond exceeds $50,000. The estate must pay the cost of the bond. {Tex. Estates Code Sec. 1105.003(b)}

6. Approval and Filing of Bond

The bond must be signed by the principal and sureties, approved by the court, and filed withthe clerk when approved by the court. {Tex. Estates Code Sec. 1105.108} and {Tex. EstatesCode Sec. 1105.110}

7. Inadequate Bond

As the administration of the guardianship progresses, the bond may prove to be inadequate to protect the assets of the estate. {Tex. Estates Code Sec. 1105.251} Inadequacies are usuallydiscovered when the inventory is filed or realty is sold or when filing the annual account. Insuch cases the court may order a new bond filed. See Cross, “Opening and Administering theTexas Guardianship,” 11 S.Tex.L.J. 60, 67 (1969). The order requiring a new bond suspendsthe powers of the guardian until a new bond is given and approved. {Tex. Estates Code Sec.1105.254}


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8. Excessive Bond

If the bond is greater than necessary to protect the assets of the estate, the guardian may apply to have it decreased. Notice by posting is required. {Tex. Estates Code Sec. 1105.255}

9. Suit on Bond

When the successor guardian sues on the bond of the predecessor, the principal as well as thesurety must be joined as a party. {Tex. R. Civ. P. 31}

10. Statute of Limitations

Any suit on the bond of a guardian must be brought within four years after the death,resignation, removal, or discharge of the guardian. {Tex. Civ. Prac. & Rem. Code Sec. 16.004}

M. Qualification

When a person who is appointed guardian has qualified under {Tex. Estates Code Sec.1105.002}, the clerk must issue to the guardian a certificate under seal, stating the fact of theappointment, of the qualification, the date of the appointment and qualification, and the date theletters of guardianship expire. The certificate issued by the clerk constitutes letters ofguardianship. {Tex. Estates Code Sec. 1106.001(b)}

Note that under Sec. 1105.002, a guardian is deemed to have duly qualified when the guardian has taken and filed the oath required under Sec. 1105.051, has made the required bond, and has filedit with the clerk, and has the bond approved by the judge. A guardian who is not required tomake bond, is deemed to have duly qualified when the guardian has taken and filed the requiredoath. {Tex. Estates Code Sec. 1105.002}

All letters of guardianship expire one year and four months after the date of issuance unlessrenewed. {Tex. Estates Code Sec. 1106.002}

The guardian should take his or her oath and file the required bond within twenty days from theorder granting letters of guardianship; however, the oath and bond may be filed later if the orderhas not been revoked. The oath may be taken before any person authorized to administer oathsunder the laws of this state. {Tex. Estates Code Sec. 1105.003}

N. Complete Restoration of Ward’s Capacity or Modification of Guardianship

1. Written Application

A ward or any person interested in the ward’s welfare may file a written application with thecourt for an order:


Guardianship - 40


a. finding that the ward is no longer an incapacitated person and ordering thesettlement and closing of the guardianship;

b. finding that the ward lacks the capacity, or lacks sufficient capacity with supportsand services, to do some or all of the tasks necessary to provide food, clothing, orshelter for himself or herself, to care for the ward’s own physical health, or tomanage the ward’s own financial affairs; or

c. finding that the ward has the capacity, or sufficient capacity with supports andservices, to do some, but not all, of the tasks necessary to provide food, clothing, orshelter for himself or herself, to care for the ward’s own physical health, or tomanage the ward’s own financial affairs and:

(1) limiting the powers or duties of the guardian; and

(2) permitting the ward to care for himself or herself, make personal decisionsregarding residence, or manage the ward’s own financial affairs commensuratewith the ward’s ability. {Tex. Estates Code Sec. 1202.051(a)}

Effective Sept. 1, 2017, if the guardian of a ward who is the subject of an application filedunder Sec. 1202.051(a) has resigned, was removed, or has died, the court may not require theappointment of a successor guardian before considering an application. {Tex. Estates CodeSec. 1202.051(b)}

2. Procedure

A ward may make a request for an order by informal letter to the court. On receipt of aninformal letter, the court must appoint the investigator or a guardian ad litem to investigatethe ward’s circumstances, file a report of those conclusions, and (if in the ward’s best interests) file an application on the ward’s behalf. A guardian ad litem may also be appointed by thecourt to serve as attorney ad litem. When an application is filed, citation must be served on the ward’s guardian and on the ward if the ward is not the applicant. Except as otherwiseprovided by the court, on good cause shown by the applicant, a person may not reapply forcomplete restoration of a ward’s capacity or modification of a ward’s guardianship before thefist anniversary of the date of the hearing on the last preceding application. {Tex. EstatesCode Secs. 1202.054-.055}

Effective Sept. 1, 2017, a written letter or certificate is not required from a physician beforethe court appoints an investigator or guardian ad litem. {Tex. Estates Code Sec.1202.054(b-1)}

No later than thirty days after the court receives the ward’s informal letter, the court mustsend the ward a letter by certified mail:


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VII. APPOINTMENT AND QUALIFICATION OF THE GUARDIAN N. Complete Restoration of Ward’s Capacity or Modification of Guardianship

a. acknowledging receipt of the informal letter; and

b. advising the ward of the date on which the court appointed the court investigatoror guardian ad litem, along with the contact information for the investigator or adlitem. {Tex. Estates Code Sec. 1202.054(b-2)}

3. Hearing

At a hearing on an application for complete restoration of a ward’s capacity or modification of a ward’s guardianship, the court must consider - with one exception - only evidence regardingthe ward’s mental or physical capacity at the time of the hearing that is relevant to therestoration of capacity or modification of the guardianship. Relevant evidence includesanything relating to whether the guardianship is necessary and whether specific powers orduties of the guardian should be limited if the ward receives supports and services. {Tex.Estates Code Sec. 1202.151(a)(1)-(2)} The party who filed the application has the burden ofproof at the hearing. {Tex. Estates Code Sec. 1202.151}

At the hearing, the court may also consider whether to remove the prohibition under federallaw (18 U.S.C. Sec. 922(g)(4)) on purchasing a firearm for a former ward whose guardianshipis terminated because the person’s capacity has been restored. {Tex. Estates Code Sec.1202.201}

On this issue, the judge must hear and consider evidence about:

a. the circumstances that led to imposition of the firearms disability;

b. the person’s mental history;

c. the person’s criminal history; and

d. the person’s reputation. {Tex. Estates Code Sec. 1202.201(c)}

A court may not allow removal of the firearm prohibition unless the court makes affirmativefindings that:

a. the person or ward is no longer likely to act in a manner dangerous to publicsafety; and

b. removing the person’ disability to purchase a firearm is in the public interest.{Tex. Estates Code Sec. 1202.201(d)}


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4. Findings Required

Before ordering the settlement and closing of the guardianship under a filed application, thecourt must find by a preponderance of the evidence that the ward is no longer partially or fully incapacitated.

Before granting additional powers to the guardian or requiring the guardian to performadditional duties, the court must find by a preponderance of the evidence that the currentnature and degree of the ward’s incapacity warrants a modification of the guardianship andthat some or all of the ward’s rights need to be further restricted.

Before limiting the powers granted to or duties required to be performed by the guardian, thecourt must find by a preponderance of the evidence that the current nature and degree of theward’s incapacity, with or without supports and services, warrants a modification of theguardianship and that some of the ward’s rights need to be restored, with or without supportsand services. {Tex. Estates Code Sec. 1202.153}

5. Examinations and Reports Relating to Restoration of Capacity or Modification ofGuardianship

The court may not grant an order completely restoring a ward’s capacity or modifying a ward’s guardianship unless the applicant presents to the court a written letter or certificate from aphysician licensed in Texas that is dated not earlier than the 120th day before the date of thefiling of the application or dated after the date on which the application was filed but beforethe date of the hearing.

The letter or certificate must:

(1) describe the nature and degree of incapacity, including the medical history, ifreasonably available, or state that, in the physician’s opinion, the ward has thecapacity, or sufficient capacity with supports and services, to provide food, clothing,and shelter for himself or herself, to care for the ward’s own physical health, and tomanage the financial affairs of the ward;

(2) provide a medical prognosis specifying the estimated severity of any incapacity;

(3) state how or in what manner the ward’s ability to make or communicateresponsible decisions concerning himself or herself is affected by the person’sphysical or mental health;

(4) state whether any current medication affects the demeanor of the ward or theward’s ability to participate fully in a court proceeding;


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(5) describe the precise physical and mental conditions underlying a diagnosis ofsenility, if applicable; and

(6) include any other information required by the court. {Tex. Estates Code Sec.1202.152}

If the court determines it is necessary, it may appoint physicians to examine the ward in thesame manner and to the same extent as a ward is examined by a physician under {Tex. Estates Code Sec. 1101.104}.

VIII. ADMINISTRATION OF THE GUARDIANSHIP

The administration of a guardianship is different from the administration of a decedent’s estate. Aguardianship is expected to continue for a lengthy period providing income for the maintenance and support of a person, while administration of a decedent’s estate is intended to last only as long asnecessary to wind up and distribute the estate.

A. Marshaling Assets, Notice to Creditors, and Filing the Inventory

1. Taking Possession

Immediately upon receipt of letters, the guardian of the estate must collect and takepossession of all personal property, records, title papers, and business papers of the estate.{Tex. Estates Code Sec. 1151.152} The guardian, however, is not entitled to possession of awill that has been placed in safekeeping with an attorney under the ward’s instructions not todeliver the will to anyone until the ward’s death. Baumann v. Willis, 721 S.W.2d 535 (Tex. App.- Corpus

Christi 1986, no writ).

Nor does the guardian, without court approval, have authority to revoke a revocable trust onbehalf of an incompetent settlor. Weatherly v. Byrd, 566 S.W.2d 292 (Tex. 1978). The right torevoke a revocable trust, without an agreement to the contrary, is a purely personal right ofthe settlor and does not vest in the guardian. Weatherly v. Byrd, 566 S.W.2d 292 (Tex. 1978).While a parent is the natural guardian of a minor child, only a duly appointed guardian of theminor’s estate is entitled to custody and control of the estate. Patillo v. Allison, 51 S.W.2d 1041(Tex. Civ. App. - Waco 1932, no writ).

2. Notice to Creditors

A 1988 U.S. Supreme Court decision indicated that due process requires the personalrepresentative of an estate to give actual notice by mail to all reasonably ascertainable


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VIII. ADMINISTRATION OF THE GUARDIANSHIP N. Complete Restoration of Ward’s Capacity or Modification of Guardianship

creditors. That case involved an Oklahoma probate statute that provided for a two-monthstatute of limitations bar to all creditors who had not filed a claim after notice by publicationthat a personal representative had qualified. Tulsa Professional Collection Services, Inc. v. Pope, 485U.S. 478 (1988). The Texas legislature responded by amending the notice of claims statute in1991 to require mail notice in addition to publication. The following provisions apply:

a. Within one month after receiving letters, the guardian must publish a notice tocreditors in a newspaper of general circulation in the county and have a copy of thenotice and the publisher’s affidavit filed of record. Within one month, the guardianmust also send to the comptroller notice if the ward remitted or should haveremitted taxes administered by the comptroller. {Tex. Estates Code Sec. 1153.001}

b. Within four months after receiving letters, the guardian must give notice tosecured creditors by certified mail or registered letter, return receipt requested. {Tex.Estates Code Sec. 1153.003}

c. Within four months after receiving letters, the guardian must give notice to general claimants by certified or registered mail if the guardian has actual knowledge of thedebt or claim. {Tex. Estates Code Sec. 1153.003}

3. Filing the Inventory

Inventory and Appraisement. Not later than the thirtieth day after the date the guardian of theestate qualifies as guardian, unless a longer time is granted by the court, the guardian of theestate must file with the clerk of the court a verified, full, and detailed inventory, in onewritten instrument, of all the property of the ward that has come into the guardian’spossession or knowledge. {Tex. Estates Code Sec. 1154.051} Approval of the inventory bythe court is not an adjudication of property listed or omitted on the inventory, but is primafacie evidence of that fact. Adams v. Sadler, 696 S.W.2d 690 (Tex. App. - Austin 1985, writ ref’d n.r.e.).

Previously, guardians had ninety days (or any longer period that the court granted) to file aninventory. Amendments in 2003 shortened that deadline to thirty days. {Tex. Estates CodeSec. 1154.051} Sec. 1203.203 also was amended to require a successor guardian to file aninventory within thirty days. The reason for the deadline is a new requirement that theguardian apply for approval of a monthly allowance within thirty days of the granting of letters of guardianship {Tex. Estates Code Sec. 1156.001} In some parts of the state, monthlyallowances were common. Now they are required.

The inventory must specify what portion of the property is separate property and whatportion is community property. If any of the property is owned in common with otherpersons, the inventory must specify the interest owned by the ward. {Tex. Estates Code Sec.1154.051}


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VIII. ADMINISTRATION OF THE GUARDIANSHIP A. Marshaling Assets, Notice to Creditors, and Filing the Inventory

B. Powers and Duties of the Guardian

1. General

a. Guardian of the Person

The guardian of the person is entitled to the charge and control of the person of theward, and the duties of the guardian correspond with the rights of the guardian. Aguardian of the person has:

(1) the right to have physical possession of the ward and to establish the ward’slegal domicile;

(2) the duty of care, control, and protection of the ward;

(3) the duty to provide the ward with clothing, food, medical care, and shelter;

(4) the power to consent to medical, psychiatric, and surgical treatment other than the in-patient psychiatric commitment of the ward;

(5) on application to and order of the court, the power to establish a trust inaccordance with 42 U.S.C. 1396p(d)(4)(B) and direct that the income of the wardbe paid directly to the trust, solely for the ward’s eligibility for medical assistanceunder Chapter 32, Human Resources Code; and {Tex. Estates Code Sec.1151.051}

(6) the power to sign documents necessary or appropriate to facilitateemployment of the ward if:

(a) the guardian was appointed with full authority over the person of the ward;or

(b) the power is specified in the court order appointing the guardian withlimited powers over the person of the ward. {Tex. Estates Code Sec.1151.051(c)}

A guardian of a person may “voluntarily” admit the ward to an in-patient psychiatricfacility and consent to the administration of medications in some cases. There arelimits on this authority, but this should close a gap in Texas jurisprudence thatresulted in many unnecessary civil commitment proceedings. See {Health and SafetyCode Chapter 573}, {Tex. Estates Code Secs. 1151.051(d), 1151.053, and 1151.054}Effective Sept. 1, 2017, the guardian must immediately provide written notice to thecourt that granted the guardianship of the filing of an application under {Tex. Health and Safety Code Sec. 573.004}. {Tex. Estates Code Sec. 1151.051(d)}


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VIII. ADMINISTRATION OF THE GUARDIANSHIP B. Powers and Duties of the Guardian

Except in cases of an emergency, a guardian may only place the ward in a morerestrictive health care facility if the guardian provides notice of the proposedplacement to the court, the ward, and any other person who has requested notice.The court may order the placement no earlier than seven days after receiving thenotice. If, however, the ward or another person has objected to the proposedplacement within eight business days after receiving notice, the court must hold ahearing at which time it can order or refuse the proposed placement. {Tex. EstatesCode Sec. 1151.051(e)}

Several courts have held that the guardian of the person is essentially a managingconservator. Cruz v. Scanlan, 682 S.W.2d 422 (Tex. App. - Houston [1st Dist.] 1984,no writ); In re Guardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App. - Corpus Christi 1977, writ ref’d n.r.e.). In Little v. Little, 576 S.W.2d 493 (Tex. Civ. App. - SanAntonio 1979, no writ), the court held that the guardian has authority, with courtapproval, to donate a ward’s kidney, but in Frazier v. Levi, 440 S.W.2d 393 (Tex. Civ.App. - Houston [1st Dist.] 1969, no writ), the guardian was not authorized toconsent to sterilization of an incompetent ward. See Farrell, “Consent to MedicalCare of Minors: Who Has Authority in Texas,” 42 Tex.B.J. 25 (1979). Until 1988 itwas generally agreed that neither a guardian nor next friend is empowered to file adivorce action on behalf of the ward. Hart v. Hart, 705 S.W.2d 332 (Tex. App. -Austin 1986, writ ref’d n.r.e.); Dillion v. Dillion, 274 S.W. 217 (Tex. Civ. App. -Amarillo 1925, no writ); Clarady v. Mills, 431 S.W.2d 63 (Tex. Civ. App. - Houston[1st Dist.] 1968, no writ). However, the Texas Supreme Court, in a per curiamopinion, has now ruled definitively that a guardian or next friend may exercise theright of a mentally ill person to obtain a divorce. Wahlenmaier v. Wahlenmaier, 762S.W.2d 575 (Tex. 1988).

b. Guardian of the Estate

The guardian of the estate is responsible for taking possession of and managing theestate and collecting all funds and property due the estate. The guardian shouldmanage the estate as a “prudent person would manage the person’s own property.”{Tex. Estates Code Sec. 1151.101} This includes the authority to:

(1) possess and manage all property belonging to the ward;

(2) collect all debts, rentals, or claims that are due to the ward;

(3) enforce all obligations in favor of the ward;

(4) bring and defend suits by or against the ward; and

(5) effective Sept. 1, 2017, access the ward’s digital assets as detailed in newEstates Code Chapter 2001. {Tex. Estates Code Sec. 1151.101(a)}


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2. Power to Act without Court Authority

A guardian may perform the following acts without court authorization:

a. release liens upon final payment;

b. vote stocks;

c. pay calls and assessments;

d. purchase liability and property insurance; and

e. pay taxes, court costs, and bond premiums. {Tex. Estates Code Sec. 1151.103}

3. Collection of Claims and Recovery of Property

{Tex. Estates Code Sec. 1151.105} provides that the guardian of an estate “shall use ordinarydiligence to collect all claims and debts due the ward and to recover possession of all propertyof the ward to which the ward has claim or title, if there is a reasonable prospect of collectingthe claims or of recovering the property.” {Tex. Estates Code Sec. 1151.105}

Sec. 1153.053 provides that a guardian of an estate may contract to hire an attorney on acontingent fee basis to collect claims or recover property of the estate. The contingency feecontract cannot exceed one-third of the return going to the attorney unless the court approves a higher fee. {Tex. Estates Code Sec. 1153.053}

Sec. 1155.054 permits the award of attorney’s fees even if the applicant asks for someoneother than himself or herself to be appointed guardian or if a management trust is created.{Tex. Estates Code Sec. 1155.054}

If the court finds a party acted in bad faith or without just cause in prosecuting or objecting to an application in a guardianship proceeding, the court may require the party to reimburse theward’s estate for all or part of the attorney’s fees. {Tex. Estates Code Sec. 1155.054(d)}

4. Support, Maintenance, and Education of the Ward

a. Where the Guardian is Parent of a Minor/ward

The parent of a minor has a legal duty to support the child from the parent’s ownresources. Therefore, absent evidence that the parent is unable to support the child,the parent has no authority as guardian to invade either the income or corpus of thechild’s estate. Tharp v. Blackwell, 570 S.W.2d 154 (Tex. Civ. App. - Texarkana 1978,no writ); In re Guardianship Estates of Kaufman, 429 S.W.2d 612 (Tex. Civ. App. - Dallas 1968, no writ); Ross v. United States, 348 F.2d 577 (5th Cir. 1965). However, a court


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may allow the guardian to spend the income or corpus to support, educate, ormaintain the ward if the guardian presents clear and convincing evidence showingthat the ward’s parents are unable without unreasonable hardship to pay for allexpenses related to the ward’s support. {Tex. Estates Code Sec. 1156.051}

b. Liability for Support of an Incapacitated Person without an Estate

When an incapacitated person has no estate, the question of who is responsible forsupport is an open question as a result of the repeal of former Sec. 423 of the TexasProbate Code. Historically, the Texas Constitution and the various statutes regulating the authority and duties of counties placed the responsibility for support andmaintenance of indigents on county government. However, there were statutoryprovisions under the former guardianship law that placed the burden of support andmaintenance upon the family of the indigent despite the counties’ constitutional andstatutory obligation. Even though there were constitutional provisions placing thesupport obligation elsewhere, in Red v. Red, 552 S.W.2d 90, 91 (Tex. 1977), the courtstated: “There can be no doubt of the obligation of a financially able father ormother of an incompetent unmarried person to maintain the incompetent, whether a minor or adult.”

Also, in Adkins v. Adkins, 743 S.W.2d 745 (Tex. App. - El Paso 1987, writ denied),the court held that a divorced parent, as guardian of her incompetent, adult son, may obtain support from the other parent under former Probate Code Sec. 423. Although the appellate court in Runnels v. Firestone, 746 S.W.2d 845 (Tex. App. - Houston [14thDist.] 1988), writ denied per curiam, 760 S.W.2d 240 (Tex. 1988), held that thenon-custodial parent of an adult incompetent was not obligated under former Sec.423 to support the ward, the Supreme Court in its per curiam denial of writ at 760S.W.2d 240, stated: “However, we expressly decline to approve the court of appeals’interpretation of Section 423, Tex. Prob. Code Ann. (Vernon 1980) and its analysisof Red v. Red, [552 S.W.2d 90, 91 (Tex. 1977)]”. The repeal of Sec. 423 should resolve the statutory conflict that existed under former law.

c. Non-parent Guardian

Subject to {Tex. Estates Code Sec. 1156.051}, if a monthly allowance for the ward is not ordered in the court’s order appointing a guardian, the guardian of the estatemust file an application with the court requesting a monthly allowance to beexpended from the income and corpus of the ward’s estate for the education andmaintenance of the ward and the the ward’s property. {Tex. Estates Code Sec.1156.001}; see also In re Guardianship Estates of Kaufman, 429 S.W.2d 612 (Tex. Civ.App. - Dallas 1968, no writ); Dallas Trust and Saving Bank v. Pitchford, 208 S.W. 724(Tex. Civ. App. - Dallas 1919, no writ). Pension benefits payable to a minorbeneficiary are “corpus” and not “income” and cannot be expended without courtorder. Bagwell v. McCombs, 31 S.W.2d 835 (Tex. Civ. App. - Dallas 1930, no writ);


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Anderson v. Steddum, 194 S.W. 1132 (Tex. Civ. App. - Texarkana 1917), aff’d, 222 S.W. 1090 (Tex. Comm. App. 1920, holding approved); Ross v. United States, 348 F.2d 577(5th Cir. 1965), rev’d on other grounds, 348 F.2d 577 (5th Cir. 1965). The term “netincome” means “that portion of the total income remaining after payment of allnecessary expenses incident to proper administration of the estate.” Guardianshipand Conservatorship, 42 Tex.Jur.3d 114, and cases cited therein.

The guardian must file the application requesting the monthly allowance not laterthan the thirtieth day after the date on which the guardian qualifies as guardian or the date specified by the court, whichever is later. The application must clearly separateamounts requested for education and maintenance of the ward from amountsrequested for maintenance of the ward’s property. {Tex. Estates Code Sec.1156.001}

In determining the amount of the monthly allowance for the ward and the ward’sproperty, the court must consider the condition of the estate and the income andcorpus of the estate necessary to pay the reasonably anticipated regular education and maintenance expenses of the ward and maintenance expenses of the ward’s property. The court’s order setting a monthly allowance must specify the types of expenditures the guardian may make on a monthly basis for the ward or the ward’s property. Anorder setting a monthly allowance does not affect the guardian’s duty to account forexpenditures of the allowance in the annual account required by Sec. 1163.001-.002.{Tex. Estates Code Sec. 1156.002}

If different people have the guardianship of a ward and the ward’s estate, the court’sorder setting a monthly allowance must specify any amount set by the court for theward’s education and maintenance that the guardian of the estate must pay to theguardian of the ward. {Tex. Estates Code Sec. 1156.003}

d. Expenditures of Corpus

The court must authorize by order any expenditure from the estate for the ward’seducation and maintenance. {Tex. Estates Code Sec. 1156.001}; see also Ross v.United States, 348 F.2d 577 (5th Cir. 1965); Pemberton v. Leatherwood, 218 S.W.2d 500(Tex. Civ. App. - Eastland 1949, writ ref’d n.r.e.).

PRACTICE NOTE: Many lawyers are unfamiliar with the “invasion of principal”prohibition and place themselves in jeopardy with their clients and carriers by failingto inform their clients of this restriction. Many guardians have been removed or held personally liable for attorney ad litem fees resulting from an unauthorized invasion of principal. The statute limits the ability of the court to aid a guardian who hasmistakenly invaded principal.


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e. Court Approval of Previous Expenditures of Corpus

When a guardian has in good faith expended funds from the income and corpus ofthe estate of the ward for support and maintenance of the ward and the expenditures exceed the monthly allowance authorized by the court, the guardian must file amotion with the court requesting approval of the expenditures. The court mayapprove the excess expenditures if:

(1) the expenditures were made when it was not convenient or possible for theguardian to first secure court approval;

(2) the proof is clear and convincing that the expenditures were reasonable andproper;

(3) the court would have granted authority in advance to make the expenditures;and

(4) the ward received the benefits of the expenditures. {Tex. Estates Code Sec.1156.004}

If the guardian is a parent of the ward, he or she must also show that he or she isunable to provide adequate support for the ward. Ross v. United States, 348 F.2d 577(5th Cir. 1965). The court should hear evidence and make findings on any claim forretroactive approval of unauthorized expenditures of corpus. Approval ofexpenditures made without prior court order for emergency hospitalization of theward was held to be proper. Pemberton v. Leatherwood, 218 S.W.2d 500 (Tex. Civ. App.- Eastland 1949, writ ref’d n.r.e.).

f. Social Security Benefits

In Tharp v. Blackwell, the court held that social security benefits for a minor were not“corpus” of the guardianship estate because the Social Security Act, 42 U.S.C. 405,preempts the field concerning social security benefits paid to an individual payee.Tharp v. Blackwell, 570 S.W.2d 154 (Tex. Civ. App. - Texarkana 1978, no writ). See 20C.F.R., Subpart Q, Sec. 404.1604. However, if the social security funds arecomingled with guardianship estate funds or if the funds are paid directly to theguardianship, the social security funds must be accounted for by the guardian to thesatisfaction of the court.


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5. Claims Due to and from the Ward

a. Authentication

The general rule is that all claims must be authenticated before the personalrepresentative of an estate may allow the claim, but in matters of guardianship theguardian is permitted to pay an unauthenticated claim if he or she believes it to bejust. The claim must be supported by an affidavit that the claim is just and that alllegal offsets, payments, and credits known to the affiant have been allowed. Note,however, that the guardian acts at his or her own peril, and if the court finds theclaim to be unjust, the guardian and the sureties will be liable for the amount paid.{Tex. Estates Code Sec. 1157.004}, {Tex. Estates Code Sec. 1157.059}, and {Tex.Estates Code Sec. 1157.102}

b. Claim by Guardian

A claim held by the guardian prior to appointment must be verified by affidavit andpresented to the clerk as in other cases. {Tex. Estates Code Sec. 1157.201}

c. Order of Payment

Under {Tex. Estates Code Sec. 1157.103}, once claims have been allowed andapproved by the court or established by suit, they are paid as listed below, unless theestate is insolvent. If the estate is insolvent the guardian must give first priority to the payment of a claim relating to the guardianship. {Tex. Estates Code Sec. 1157.103}The guardian must pay all other claims in the following order:

(1) expenses for the care, maintenance, and education of the ward and the ward’sdependents;

(2) funeral expenses and expenses of last illness if the guardianship is kept openafter the ward’s death under {Tex. Estates Code Sec. 1204.051};

(3) expenses of administration; and

(4) all other claims against the estate.

d. Classification of Claims

There is no provision for classification of claims in a guardianship estate; therefore,creditors who have perfected claims receive equal consideration and are entitled totheir pro rata shares of the ward’s funds. Cross, “Opening and Administering theTexas Guardianship,” 11 S.Tex.L.J. 60 (1969).


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e. Guardian Purchasing Claims

A guardian is prohibited from purchasing a claim against the estate. {Tex. EstatesCode Sec. 1157.202}

f. Notification to Veterans’ Administration

If the ward is a VA beneficiary, that agency is entitled to notice and hearing beforeany claim is paid; however, the VA will usually waive notice and hearing. Cross,“Opening and Administering the Texas Guardianship,” 11 S.Tex.L.J. 60, 78 (1969).

g. Failure to Endorse Claim

The guardian may be removed for failure to endorse his or her allowance or rejection to a claim within thirty days. {Tex. Estates Code Sec. 1157.052} If a claim is laterestablished by a suit, the guardian may bear the costs or the guardian may beremoved on the written complaint of any person interested in the claim. {Tex.Estates Code Sec. 1157.052}

h. Nutshell Claim Procedure

(1) Notice to creditors by publication within thirty days from receiving letters.

(2) Notice to secured creditors by certified or registered letter, return receiptrequested, within four months from receiving letters.

(3) Notice to general claimants, if known, by certified or registered mail, withinfour months of receiving letters.

(4) Presentment of authenticated claim to guardian or filed with the county clerk,or presentment of unauthenticated claim to guardian which may be paid byguardian at his own peril.

(5) Claim allowed or rejected within thirty days from presentment or filing(automatic rejection after thirty days).

(6) Allowed claims filed with the clerk and placed on the claim docket.

(7) After ten days the court approves or rejects the claims (except when VAbeneficiary and VA does not waive hearing).

(8) Approved claim paid by guardian.

(9) Suit on rejected claim must be filed within ninety days from date of rejection.


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PRACTICE NOTE: A creditor must pay attention to the automatic rejection rule asthe ninety-day-after-rejection time frame to file suit bars many lawsuits by theunwary.

6. Borrowing

a. General

Under order of the court, a guardian may mortgage or pledge estate property assecurity on a loan to pay taxes, expenses of administration, business or farmexpenses, claims, and extensions on liens, or to make improvements and repairs sothat property may be made revenue producing. {Tex. Estates Code Sec. 1151.201}

b. Best Interest of Ward

In the case of guardians of estates, the court in its discretion may authorize theborrowing of money if the court finds it to be in the best interest of the ward. {Tex.Estates Code Sec. 1151.201}

c. Purchase of Residence

The court may authorize the borrowing of money to purchase a residence for theward or the ward’s dependents. {Tex. Estates Code Sec. 1151.201(a)(6)}

d. Funeral Expenses

If the guardianship is kept open after the death of the ward, funeral expenses andexpenses of the ward’s illness may be paid by borrowed funds. {Tex. Estates CodeSec. 1151.201(a)(7)}

e. Home Equity Loans

A guardian may seek a court order to get a home equity loan using the ward’shomestead as security when necessary to make improvements or repairs to the home or to pay for education or medical expenses of the ward. {Tex. Estates Code Sec.1151.201} See also {Tex. Estates Code Sec. 1352.052}, allowing mortgage of aresidential homestead interest of a minor without guardianship.

7. Sale and Partition

a. Purchase by Guardian

A guardian cannot purchase any property of the ward unless:


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(1) the guardian entered into a written executory contract signed by the ward prior to the ward becoming incapacitated; or {Tex. Estates Code Sec. 1158.652}

(2) the court approves such purchase after having an attorney ad litem appointedto represent the ward’s interest. {Tex. Estates Code Sec. 1158.653}

b. Certain Personal Property to Be Sold

The guardian of an estate, after approval of inventory and appraisement, mustpromptly apply for an order of the court to sell at public auction or privately, forcash or on no more than six months’ credit, all of the estate that is liable to perish,waste, or deteriorate in value or that will be an expense or disadvantage to the estateif kept. Property exempt from forced sale, a specific legacy, or personal propertynecessary to carry on a farm, ranch, factory, or any other business that it is thoughtbest to operate, may not be included in a sale under {Tex. Estates Code Sec.1158.051}.

PRACTICE NOTE: Sec. 1158.051 has the potential for creating a nightmare forguardians, their lawyers, and judges. There have been lawsuits filed in this stateagainst guardians for diminution in value of property in circumstances where theguardian maintained the property without approaching the court for authority to sell. Some of these guardians have filed malpractice claims against their lawyers for failure to advise them of the duty to dispose of property subject to diminution in value. Inat least one of these suits, the judge of the probate court was joined as a party forallegedly failing to monitor the estate as required by law.

c. Application to Sell Property

Under {Tex. Estates Code Sec. 1158.251} and {Tex. Estates Code Sec. 1158.501},the guardian may apply to sell property in order to:

(1) pay expenses of administration, funeral expenses, allowances, claims, anddebts against the estate;

(2) make up a deficiency when the income from the estate is insufficient for theward’s education and maintenance;

(3) dispose of an undivided interest in real estate;

(4) provide an easement or right-of-way;

(5) dispose of non-productive real estate;

(6) sell mineral interests to conserve the estate; and/or


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(7) dispose of real property if it is in the best interest of the ward.

d. Cash or Credit

Sales of real estate must be for cash or credit with a minimum one-fifth in cash and a note bearing at least 4 percent interest secured by a vendor’s lien and deed of trust.{Tex. Estates Code Sec. 1158.301}

e. Private or by Auction

Sales may be made by private sale or by auction as approved by the court. {Tex.Estates Code Sec. 1158.103}, {Tex. Estates Code Sec. 1158.402}, and {Tex. EstatesCode Sec. 1158.451}

f. Temporary Guardian Authorized

Unlike a temporary administrator, a temporary guardian may be authorized by thecourt to sell estate property. McKinley v. Salter, 136 S.W.2d 615 (Tex. Civ. App. - ElPaso 1939, writ dism’d).

g. Nutshell Procedure for Sale of Real Property

The nutshell procedure for sale of real property consists of the following:

(1) Guardian files written application describing property with attached verifiedaffidavit of condition of estate. {Tex. Estates Code Sec. 1158.252}

(2) Notice by posting for ten days required.

(3) Hearing is held and order of sale is approved.

(4) Sale takes place and sales proceeds placed into escrow.

(5) A sworn report of sale is filed within thirty days from date of sale.

(6) Report of sale must remain on file for five days.

(7) Court determines sufficiency of the bond and may order additional bond.

(8) Court enters an order confirming or disapproving sale.

(9) Guardian conveys real estate by deed identifying or referring to order of sale.

(10) Sales proceeds are distributed.


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Sales of personal property do not require conveyance and the decree confirming thesale of personal property will pass title. {Tex. Estates Code Sec. 1158.105} SeeCross, “Opening and Administering the Texas Guardianship,” 11 S.Tex.L.J. 60, 84(1969).

h. Hear Evidence

The court should hear evidence prior to an order of sale to determine whether theproposed sale of particular property would be in the best interest of the ward or isnecessary and advisable. {Tex. Estates Code Sec. 1158.251} See also White v. Pope,664 S.W.2d 105 (Tex. App. - Corpus Christi 1983, no writ).

i. Court Approval

All sales of guardianship property require court approval, and a sale without courtapproval is considered void. {Tex. Estates Code Sec. 1158.001} See also Browne v.Fidelity & Deposit Co., 80 S.W. 593 (Tex. 1904).

j. Joint or Commonly Owned Property

The guardian has several courses of action in dealing with jointly or commonlyowned property:

(1) The guardian can possess the property in common with other co-owners.{Tex. Estates Code Sec. 1158.251(3)}

(2) With court approval, the guardian may sell the ward’s undivided interest. {Tex. Estates Code Sec. 1151.201}

(3) With court approval, the guardian may enter into an agreement with otherjoint owners for partition. {Tex. Estates Code Sec. 1158.701}

(4) If the guardian cannot reach an agreement for partition with other jointowners, he or she may sue for partition in court. {Tex. Estates Code Sec.1158.706}

8. Investments and Loans

A guardian of the estate is considered to have exercised the standard required with respect toinvesting the ward’s estate if the guardian invests in the following: bonds, collateral bonds,shares or share accounts, interest-bearing time deposits, or (effective Sept. 1, 2017, an ABLEaccount in accordance with the Texas Achieving a Better Life Experience Program underEducation Code Chapter 54. {Tex. Estates Code Sec. 1161.003}


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If the guardian neglects to invest surplus money, the guardian is liable for the principal and the highest legal interest rate which the funds would have earned.

In addition to any other remedy authorized by law, if the guardian of the estate fails to investor lend estate assets, the guardian and the guardian’s surety are liable for the principal and thegreater of:

(1) the highest legal rate of interest on the principal during the period the guardianfailed to invest or lend the assets; or

(2) the overall return that would have been made on the principal if the principalwere invested in the manner provided by this subpart.

(3) In addition, the guardian and the guardian’s surety are liable for attorney’s fees,litigation expenses, and costs related to a proceeding brought to enforce theseprovisions. {Tex. Estates Code Sec. 1161.008}

Before making an investment, the guardian must obtain the written opinion of an attorneythat all papers, documents, and titles to bonds, notes, or realty are good, except that a titleinsurance policy on real estate may be obtained in lieu of the attorney’s opinion. {Tex. EstatesCode Sec. 1161.203}

Under {Tex. Estates Code Sec. 1161.0031}, a guardian of the estate is considered to haveexercised the standard required with respect to investing the ward’s estate if the guardianinvests in the following:

(1) bonds or other U.S. obligations;

(2) tax-supported bonds of Texas or governmental subdivisions of the state;

(3) federally insured share accounts or interest bearing accounts in federal savingsand loan associations and state savings and loan associations or banks in Texas;

(4) collateral bonds of Texas corporations that have paid-in capital of $1 million;

(5) interest-bearing time deposits that may be withdrawn on or before one year afterdemand in a Texas bank that is FDIC insured; or

(6) effective Sept. 1, 2017, an ABLE account established under the new TexasAchieving a Better Life Experience (ABLE) Program under Chapter 54, SubchapterJ, of the Texas Education Code. {Tex. Estates Code Sec. 1161.003}


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Any investment made without court approval must be reported to the court within thirty days. {Tex. Estates Code Sec. 1161.204}

The guardian may apply to the court for an order to invest in life, term or endowmentinsurance policies or annuity contracts or to renew an existing life insurance policy or annuity.{Tex. Estates Code Sec. 1161.102}

The guardian may also apply for an order to invest in real estate. The application must remainon file at least ten days before the court enters its order. No money can be paid out prior tocourt approval, and title to the real estate will be in the name of the ward. {Tex. Estates CodeSec. 1161.151}

Surplus money may be loaned by the guardian to a borrower without court order if theinterest rate is reasonable and the loan is secured by a mortgage with power of sale onunencumbered real estate in Texas worth at least twice the amount of the loan. {Tex. EstatesCode Sec. 1161.202} The guardian is not personally liable for the money unless the guardianhas been found guilty of fraud or negligence with respect to the loan. {Tex. Estates Code Sec.1161.205} Further, a guardian of the estate is considered to have obtained a reasonable rate of interest for a loan if the rate of interest is at least equal to 120 percent of the applicableshort-term, midterm, or long-term interest rate under Sec. 7520, Internal Revenue Code of1986, as amended, for the month during which the loan was made. {Tex. Estates Code Sec.1161.202}

Also, not later than the thirtieth day after the date the guardian of the estate loans money from the estate, the guardian must file with the court a written report and affidavit, stating fully thefacts related to the loan. This does not apply to a loan made in accordance with a court order.{Tex. Estates Code Sec. 1161.204}

9. Rental and Leasing

The guardian may rent real or personal property without court order for a term of one year orless; however, the guardian is liable for the reasonable value of the hire or rent of the propertyto be ascertained by the court on satisfactory evidence. {Tex. Estates Code Sec. 1159.001}

The guardian must file a written application with the court to rent any property for longerthan one year. {Tex. Estates Code Sec. 1159.002}

If the guardian neglects to rent property, any person may file a sworn written complaint forthe guardian to show cause for not renting property. {Tex. Estates Code Sec. 1159.005}

The court may also order the leasing of mineral rights:


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a. The order must be on written application with notice by publishing in one issue ofa newspaper of general circulation in the county in which the proceeding is pendingor by posting if there is no newspaper in the county, at least ten days before thehearing. Proof of publication is required at the hearing. If the court enters an orderauthorizing the lease, the guardian has thirty days to enter into the lease. {Tex.Estates Code Sec. 1160.052 and 1160.054}

b. If public notice would be disadvantageous to the estate, {Tex. Estates Code Sec.1160.101} permits a private lease without notice, but the time for court action onthese applications is the narrow window between the fifth day after filing and beforethe tenth day after filing.

10. Gifts and Contributions

a. General

In discussing gifts or contributions made by the guardian on behalf of the ward, it isimportant to note that Texas does not recognize the Substitution of JudgmentDoctrine. In re Guardianship of Neal, 406 S.W.2d 496 (Tex. Civ. App. - Houston [1stDist.] 1966) writ ref’d n.r.e. per curiam, 407 S.W.2d 770 (Tex. 1966). See generallyMayer, “Gifts by Guardians: Texas Rejects Substitution of Judgment Doctrine,” 19Baylor L. Rev. 411 (1967).

This doctrine gives the guardian the authority to make a gift from the incompetent’sestate if the facts show that the ward, if competent, would have done so. In Neal, the guardian attempted to make a tax-motivated gift pursuant to an estate plan thatwould have saved the ward’s estate, upon her death, between $240,000 to $480,000.The court held that without specific statutory authorization, the guardian has noauthority to make a gift. Contra Little v. Little, recognizing that Texas did not followthe Substitution of Judgment Doctrine, but then went on to allow the guardian toconsent to giving one of the incompetent ward’s kidneys to her brother. Little v.Little, 576 S.W.2d 493 (Tex. Civ. App. - San Antonio 1979, no writ).

b. Tax-motivated Gifts

Reacting to Neal, the Legislature enacted the predecessor statute to {Tex. EstatesCode Sec. 1162.001}, which allows the guardian to make tax-motivated gifts if it canbe shown that the ward will probably remain incapacitated. A guardian may alsotransfer a portion of the ward’s estate as necessary to qualify the ward forgovernment benefits and only to the extent allowed by applicable state or federallaws, including rules, regarding those benefits. {Tex. Estates Code Sec. 1162.001}.The gifts may be made only with court authorization to:

(1) charitable organizations in which the ward would reasonably have an interest;


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(2) the ward’s spouse, descendant or other person related to the ward by blood ormarriage;

(3) devisees under the last valid will, trust or other beneficial instrument of theward; or

(4) the guardian, if he is an heir or devisee. {Tex. Estates Code Sec. 1162.001}

An application must be filed and notice given to all interested persons by certifiedmail. The application must indicate that the planned disposition is consistent with the ward’s intentions, if they can be ascertained. If the ward’s intentions cannot beascertained, the ward will be presumed to favor reduction in taxation, qualificationfor government benefits, and partial distribution of the ward’s estate as provided byChapter 1162. {Tex. Estates Code Sec. 1162.002}

The court may authorize a guardian to make tax-motivated gifts annually orperiodically without the guardian having to apply each time, as long as the court finds this is in the ward’s best interest. The court can later modify or set aside an orderauthorizing annual or periodic gifts if the ward’s financial condition changes andthese gifts are no longer in the ward’s best interest. {Tex. Estates Code Sec.1162.004}

c. Charitable Contributions

The guardian may apply for an order authorizing contributions to religious,charitable, scientific, literary, educational organizations, or federal, state, county ormunicipal projects operated exclusively for public health or welfare. The applicationmust remain on file for ten days before it is considered by the court. {Tex. EstatesCode Sec. 1162.051}

To grant the application for a charitable contribution, the court must find that:

(1) the amount of the contribution will probably not exceed 20 percent of theward’s net income for the calendar year;

(2) the ward’s net income for the year will probably exceed $25,000;

(3) the full amount of the contribution will probably be deductible from theward’s gross income in determining taxable income for income tax purposes;

(4) the condition of the estate is such as to justify the contribution;

(5) the contribution is reasonable; and


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(6) the contribution is for a worthy cause. {Tex. Estates Code Sec. 1162.053}

11. Annual and Final Accountings

The inventory, annual accounts, and account for final settlement should correspond and tie-inwith each other. The annual account should take up where the inventory left off; each annualaccount should take up where the former left off; and the final account should take up fromthe last annual account. Dorsaneo, 16 Tex. Lit. Guide, Appointment of Guardians, Sec.411.08. {Tex. Estates Code Sec. 1163.001}

a. Annual Accounting

The guardian must file an annual account within sixty days upon the expiration oftwelve months from date of qualification and receipt of letters. {Tex. Estates CodeSec. 1163.002}

(1) Separate Accountings for Guardian of Person

If there are separate guardians of the estate and person, the guardian of theperson must file a separate account reporting the ward’s condition and state eachitem of receipt and disbursement for the ward’s support, maintenance, andeducation. A guardian of the person may complete and file the report requiredunder Sec. 1163.101 without the assistance of an attorney. {Tex. Estates CodeSec. 1163.101}

If a guardian files the annual report electronically with the court, the guardian may use an unsworn declaration as described by {Tex. Estates Code Sec. 1163.1011}instead of a written sworn declaration or affidavit required by {Tex. Estates CodeSec. 1163.101}.

(2) Reference to Prior Accountings

Descriptions of property sufficiently described in the inventory or a previousaccount may be made by reference thereto. {Tex. Estates Code Sec. 1163.002}

(3) Waiver

The court may waive the filing of the annual account upon a finding that theward’s personal property has a negligible or fixed income, and the court maypermit the guardian to receive all income and apply it to the ward’s support,maintenance and education and account to the court when the estate is closed.{Tex. Estates Code Sec. 1163.006}

(4) Requirements of the Annual Account

Under {Tex. Estates Code Sec. 1163.001}, the guardian must file a sworn account that contains:


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(a) a list of all claims paid and rejected or sued upon;

(b) all property coming into the guardian’s possession since the last accounting period;

(c) any changes in the property;

(d) a list of all receipts and disbursements during the accounting period;

(e) a complete description of all property being administered and the condition and use of the property;

(f) cash balance on hand and savings accounts and the depository where sameis kept;

(g) descriptions of all notes, stocks, bonds and other personal property wherekept and rate of interest; and

(h) the annual account must be supported by attachments containing: creditvouchers; bank or other depository verification letters; and proof of existenceof securities and other assets held by a depository subject to court order byproof of a certificate of an authorized representative, a certificate of the clerk,or an affidavit by any other reputable person.

(5) Affidavit

The annual account must contain an affidavit stating that:

(a) the account statement is correct and complete;

(b) the guardian has paid the bond premium for the next accounting period;and

(c) the guardian has filed all tax returns of the ward during the accountingperiod;

(d) the guardian has paid all taxes due, including a statement showing theamount paid, date paid, and name of the governmental entity receiving the taxpayment; and

(e) if the guardian is a private professional guardian, a guardianship program,or the Department of Aging and Disability Services, whether the guardian is or has been the subject of an investigation conducted by the GuardianshipCertification Board during the accounting period. {Tex. Estates Code Sec.1163.005}

(6) Action upon Annual Account

The annual account must remain on file for ten days before the court approves it,but if the ward is a beneficiary of the VA, that agency is entitled to notice and


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hearing to be held not less than twenty days from the date of the filing of theaccount, application, petition, or claim under {Tex. Estates Code Sec. 1151.301}.The VA, however, normally waives formal notice and hearing. The VA’s waivershould be attached to the annual account. See Cross, “Opening andAdministering the Texas Guardianship,” 11 S.Tex.L.J. 60, 93 (1969).

The court may order correction of the account. {Tex. Estates Code Sec.1163.052-.054} If the annual account is approved by order of the court, the courtmay order payment of unpaid claims if the estate has sufficient funds on hand orpro rata payment if not. {Tex. Estates Code Sec. 1163.052}

(7) Re-examination of Previous Accountings

Previous accountings may be re-examined on a final accounting, and even courtapproval of the annual accounts required of a personal representative does notpreclude a later challenge. Di Portanova v. Hutchison, 766 S.W.2d 856 (Tex. App. -Houston [1st Dist.] 1989, no writ).

(8) Reports to Be Included

Reports to be included by the guardian are listed in {Tex. Estates Code Sec.1163.101}.

b. Final Settlement, Accounting, and Discharge

(1) Closing of Guardianship

The estate of the ward is settled and closed under {Tex. Estates Code Sec.1204.001}, when:

(a) the minor dies, becomes an adult (18 years of age), marries, or has his orher disabilities removed;

(b) the incapacitated ward dies or is restored to full legal capacity;

(c) the spouse of a married ward qualifies as community survivor under {Tex.Estates Code Sec. 1353.002} and the ward owns no separate property;

(d) the estate becomes exhausted;

(e) the foreseeable income accruing to a ward or to his estate is so negligiblethat maintaining the guardianship in force would be burdensome;

(f) all the assets of the estate have been placed in management trust ortransferred to a pooled trust subaccount under a court order, and the courtdetermines that a guardianship for the ward is no longer necessary;

(g) the court determines for any other reason that a guardianship for the wardis no longer necessary; or


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(h) the estate of a minor ward consists only of cash or cash equivalents of$100,000 or less. In that instance, the guardianship of the estate may beterminated and the assets paid to the county clerk of the county in which theguardianship proceeding is pending, and the clerk must manage the funds asprovided by Chapter 1355. {Tex. Estates Code Sec. 1204.001}

In settling a guardianship, the court may appoint an attorney ad litem to represent the ward’s interests and may allow the attorney ad litem reasonable compensationto be taxed as costs. {Tex. Estates Code Sec. 1204.001}

Before the guardianship is closed, the court must take evidence to determine thereason for closing the estate. Novak v. Schellenberg, 669 S.W.2d 162 (Tex. Civ. App.- Corpus Christi 1984, no writ).

(2) Action Permitted after Death of Ward

The court may permit the guardian to keep the estate open after the death of theward for two specific purposes:

(a) to make funeral arrangements, pay funeral expenses and all other debts ofthe estate; or {Tex. Estates Code Sec. 1204.051}

(b) to pay inheritance or estate taxes or expenses of administration. The courtmay order the sale of properties for purposes of paying estate and inheritancetaxes or distributing the estate among the heirs. {Tex. Estates Code Sec.1204.052}

These provisions are sometimes overlooked and may be valuable tools. Aspointed out by one commentator:

“To avoid the inconvenience and expense of opening an administration thatmight not otherwise be required, the legislature amended the Probate Code toprovide the guardian with a much needed alternative. Under this amendment,the guardian may, subject to approval of the court, make all funeralarrangements, pay for such funeral expenses out of the estate of the deceasedward and pay all other debts out of the guardianship estate.

“Since no debts remain unpaid when this provision is utilized, the remainderof the ward’s estate may be passed by a determination of heirship or, if theward left a valid will, it may be probated as a muniment of title only. Althoughsometimes overlooked, this provision may be employed to considerableadvantage by the practicing lawyer.”

Cross, “Opening and Administering the Texas Guardianship,” 11 S.Tex.L.J. 60,95 (1969).


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(3) Account for Final Settlement

Before an estate can be closed, the guardian must present a verified account forfinal settlement (final account), which may refer to and adopt descriptions ofproperty in previous accounts. {Tex. Estates Code Sec. 1204.101}

(4) Contents of Final Account

The final account must contain:

(a) the property, rents, revenues, and profits received during the guardianshipand their disposition;

(b) the disposition made of the property, rents, revenues and profits;

(c) expenses and debts remaining unpaid;

(d) the property remaining on hand;

(e) that the guardian has paid all required bond premiums;

(f) the tax returns the guardian has filed during the guardianship;

(g) the amount of taxes the ward owed during the guardianship that theguardian has paid;

(h) a complete account of the taxes the guardianship had paid, including thedate paid and the name of the government entity to which the taxes were paid;

(i) a description of all current delinquencies in the filing of tax returns and thereason; and

(j) other facts as appear necessary to a full and definite understanding of theexact condition of the guardianship. {Tex. Estates Code Sec. 1204.102}

(5) Notice

The clerk must issue citation upon the filing of the final account. {Tex. EstatesCode Sec. 1204.105}

(a) If the ward is a resident of Texas and is over 12 years of age, he or shemust be cited by personal service, unless he or she waives service.

(b) If the ward is deceased, his or her executor or administrator must bepersonally served, unless the guardian is the executor or administrator;

(c) If the ward’s residence is unknown, or he or she is a non-resident, or isdeceased with no executor or administrator of his estate, citation must be bypublication unless the court orders citation by posting and the court may


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appoint an attorney to represent the interest of the ward. {Tex. Estates CodeSec. 1204.105} and {Tex. Estates Code Sec. 1204.002}

(6) Action by the Court

If the court is satisfied that citation has been served on all persons interested inthe estate, and after hearing all exceptions or objections to the account, the courtmust audit and settle the account and order any remaining property to bedistributed to the ward or personal representative of the deceased ward’s estate or any other person otherwise legally entitled. {Tex. Estates Code Sec. 1204.106}

(7) Discharge of Guardian

Whenever the final account has been approved and all property remaining hasbeen delivered to the persons entitled to receive the property, the court mustdischarge the guardian and surety and declare the estate closed. {Tex. EstatesCode Sec. 1204.152} The court may enter a conditional discharge in its orderapproving the final account. The guardian need only file a receipt of delivery andthe estate would be automatically closed. See Cross, “Opening and Administeringthe Texas Guardianship,” 11 S.Tex.L.J. 60, 95 (1969).

C. Tolling of Statute of Limitations

The statute of limitations on a minor’s cause of action is tolled during minority even if a guardianhas been appointed. Collins v. McCarty, 3 S.W. 730 (Tex. 1887); Neblett v. Valentino, 92 S.W.2d 432(Tex. 1936); Massengale v. Barnes, 106 S.W.2d 369 (Tex. Civ. App. - San Antonio 1937, writ ref’d).

IX. GUARDIAN’S COMPENSATION

A. General

The guardian’s compensation is statutorily set under {Tex. Estates Code Ch. 1155}, whichprovides:

The court may authorize compensation for a guardian or a temporary guardian serving asguardian of the person from the available funds of the ward’s estate. The court may set thecompensation at not more than 5 percent of the ward’s gross income. In determining whether toauthorize compensation for a guardian, the court must consider the ward’s monthly income from all sources and whether the ward receives medical assistance under the state Medicaid program.{Tex. Estates Code Sec. 1155.002}

The guardian or temporary guardian of the estate is entitled to a fee of 5 percent of the grossincome of the ward’s estate and 5 percent of all money paid out of the estate if the court findsthat the guardian or temporary guardian has taken care of the managed estate in compliance with


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IX. GUARDIAN’S COMPENSATION B. Powers and Duties of the Guardian

the applicable standards. “Money paid out” does not include any money loaned, invested, or paidover on a settlement of the guardianship or a tax-motivated gift by the ward. If the fee is anunreasonably low amount, the court may authorize reasonable compensation to a guardian for his or her services.

The court may also review and modify the compensation paid to the guardian if the court findsthe amount is unreasonably low when considering the services rendered. {Tex. Estates Code Sec.1155.006} The court may authorize compensation for a guardian in an estimated amount thecourt finds reasonable that is to be paid quarterly before the guardian files an annual or finalaccounting if the court finds that delaying payment would create a hardship for the guardian.{Tex. Estates Code Sec. 1155.006}

The court, on application of an interested person or on its own motion, may deny a feecompletely or in part if:

1. the court finds that the guardian or temporary guardian has not adequately performed theduties required of the guardian; or

2. the guardian has been removed for cause. {Tex. Estates Code Sec. 1155.008}

If a court reduces or eliminates a guardian’s compensation - including after making quarterlypayments - the guardian and the surety on the guardian or temporary guardian’s bond are liable to the guardian’s estate for any excess compensation received. {Tex. Estates Code Sec. 1155.007}

B. Limitations on Compensation

A guardian who is only guardian of the person typically is entitled to compensation of not morethan 5 percent of the ward’s gross income. A guardian of an estate is entitled to 5 percent of thegross income of the ward’s estate and 5 percent of all money paid out of the estate if the courtfinds that the guardian or temporary guardian has taken care of and managed the estate incompliance with Chapter 1155 standards. {Tex. Estates Code Sec. 1155.007}

Principal on a note collected by the guardian is not income from ward’s estate. Pemberton v.Leatherwood, 218 S.W.2d 500 (Tex. Civ. App. - Eastland 1949, writ ref’d n.r.e.).

VA disability payments or Social Security benefits are not income from ward’s estate. Bagwell v.McCombs, 31 S.W.2d 835 (Tex. Civ. App. - Dallas 1930, no writ); see also {Tex. Estates Code Sec. 1155.001}

Cash received for sale of the ward’s real estate is “corpus” and not “gross income”; therefore, the guardian is not entitled to a 5 percent fee. Guardianship of Rehberg, 745 S.W.2d 435 (Tex. App. -Houston [1st Dist.] 1988, no writ).


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IX. GUARDIAN’S COMPENSATION A. General

The guardian is not entitled to commission upon payment of veterans war risk insurance. Gilbertv. Hines, 32 S.W.2d 876 (Tex. Civ. App. - Dallas 1930, no writ).

Pension benefits are not “income” of ward’s estate. Anderson v. Steddum, 194 S.W. 1132 (Tex. Civ.App. - Texarkana 1917), aff’d, 222 S.W. 1090 (Tex. Comm. App. 1920, holding approved).

Guardians are not entitled to compensation for making charitable contributions under {Tex.Estates Code Sec. 1162.051-.053}.

C. When Compensation Allowed

At the time of filing the annual or final account, the guardian should make a claim forcompensation. Upon approving the annual account the court will allow compensation uponfinding the guardian has taken care of and managed the estate in compliance guardianshiprequirements. {Tex. Estates Code Sec. 1155.003}

The compensation is based on the statutory formula of 5 percent of the estate’s gross income and 5 percent on all money paid out. {Tex. Estates Code Sec. 1155.003}

If the estate of a ward is insufficient to pay for the services of a private professional guardian, thecourt may authorize compensation for that guardian if funds in the county treasury are budgetedfor that purpose. The court may authorize payment of attorney’s fees from the county treasury ifthe attorney has not received and is not seeking payment for the services from any other source.{Tex. Estates Code Sec. 1155.054}

D. Compensation above the Statutory Formula

Upon evidence and a finding that the statutory 5 percent is unreasonably low, the court mayallow a “reasonable compensation.” See, e.g., In re Estate of Rosenfield, 371 S.W.2d 95 (Tex. Civ.App. - Dallas 1962, no writ). {Tex. Estates Code Sec. 352.001), {Tex. Estates Code Sec.1155.006}

E. Compensation for Personal Services Rendered by Guardian

The personal representative is entitled to additional compensation for services rendered to theestate. See generally, Decedents’ Estates, 29 T.J. 3d 607.

A guardian, who is also an attorney, may receive reasonable attorney’s fees in addition tostatutory compensation. See Burton v. Bean, 549 S.W.2d 48 (Tex. Civ. App. - El Paso 1977, nowrit) (administrator received both attorney’s fees and statutory compensation).


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IX. GUARDIAN’S COMPENSATION B. Limitations on Compensation

PRACTICE NOTE: Many courts will not allow a guardian to be compensated both as attorneyand personal representative because of the difficulty in segregating legal work from guardianwork.

F. Forfeiture of Compensation

The court may deny the guardian’s fee in whole or in part if he has not taken care of andmanaged the estate prudently, or if he has been removed under {Tex. Estates Code Sec.1203.051}.

A personal representative is not entitled to a commission when he or she knowingly fails toaccount for the funds of the estate. Moroney v. Moroney, 280 S.W. 254 (Tex. Civ. App. - Waco1925), aff’d as reformed, 286 S.W. 167 (Tex. Comm. App. 1926); American Surety Co. v. Hughes,185 S.W.2d 235 (Tex. Civ. App. - Galveston 1945, writ ref’d).

A guardian who invests the ward’s funds without court approval is entitled to guardian’scommission if his or her acts caused no loss to the estate. Legler v. Legler, 37 S.W.2d 284 (Tex. Civ. App. - Austin 1931, no writ).

X. ATTORNEY’S FEES

A. General

The general rule is that without specific statutory authorization, the court cannot award attorney’s fees.

An attorney who serves as guardian and who also provides legal services in connection with theguardianship is not entitled to attorney’s fees for guardianship services that are not legal services.{Tex. Estates Code Sec. 1155.052} To collect from the ward’s estate or other available funds forguardianship services or attorney’s fees for legal services, an attorney who services as guardianand also provides legal services must file with the court a detailed description of the servicesperformed that identifies which services were guardianship services and which were legal services. {Tex. Estates Code Sec. 1155.052}

The court must set the attorney’s compensation for guardianship services in accordance with{Tex. Estates Code Ch. 1155}, and for attorney’s fees in accordance with {Tex. Estates CodeSec. 1155.054} and {Tex. Estates Code Sec. 1155.101}.

In any guardianship proceeding, the court costs are generally paid:

(1) out of the guardianship estate;


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X. ATTORNEY’S FEES E. Compensation for Personal Services Rendered by Guardian

(2) out of the management trust, if a management trust has been created for the ward’s benefit under Estates Code Chapter 1301 and the court determines it is in the ward’s best interest;

(3)by the party to the proceeding who incurred the costs, unless that party filed, on the party’sown behalf, an affidavit of inability to pay the costs under Rule 145, Texas Rules of CivilProcedure, that shows the party is unable to afford the costs, if:

(A)there is no guardianship estate or no management trust has been created for the ward’sbenefit; or

(B)the assets of the guardianship estate or management trust, as appropriate, areinsufficient to pay the costs; or

(4)out of the county treasury if:

(A)there is no guardianship estate or management trust

or the assets of the guardianship estate or management trust, as appropriate, are insufficient to paythe costs; and

(B)the party to the proceeding who incurred the costs filed, on the party’s own behalf, anaffidavit of inability to pay the costs under Rule 145, Texas Rules of Civil Procedure, thatshows the party is unable to afford the costs. {Tex. Estates Code Sec. 1155.151(a)}

In a guardianship proceeding, the court can set an amount it considers equitable and just for thecost of any guardians ad litem, attorneys ad litem, court visitors, mental health professionals, andinterpreters appointed. {Tex. Estates Code Sec. 1155.151(a-1)}

The following are not required to pay court costs on filing or during a guardianship proceeding:

(1)an attorney ad litem;

(2)a guardian ad litem;

(3)a person or entity who files an affidavit of inability to pay the costs under Rule 145, TexasRules of Civil Procedure, that shows the person or entity is unable to afford the costs (formore information on inability to pay costs, see {Tex. Estates Code Sec. 1151.151(a-3) and(a-4)};

(4)a nonprofit guardianship program;

(5)a governmental entity; and


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X. ATTORNEY’S FEES A. General

(6)a government agency or nonprofit agency providing guardianship services. {Tex. EstatesCode Sec. 1151.151(a-2)}

B. Attorney’s Fees in Temporary and Permanent Guardianships

A temporary or permanent guardian or a management trust is entitled to reasonable attorney’sfees necessarily incurred in connection with the proceedings and management of the ward’sestate. {Tex. Estates Code Sec. 1155.101} and {Tex. Estates Code Sec. 1155.151} A court mayorder attorney’s fees for the person who filed an application to be appointed guardian from theward’s estate or management trust, if one has been created. If the ward’s estate is insufficient andif the county has budgeted for this, the court can order attorney’s fees to be paid to theguardianship applicant’s attorney from the county treasury. {Tex. Estates Code Code Sec.1155.054} The court may only authorize payment of attorney’s fees from the county treasury ifthe court is satisfied that the attorney has not received and is not seeking payment for the services from any other source.

Sec. 1155.054 permits the award of attorney’s fees even if the applicant asks for someone else tobe appointed guardian or a management trust is created.

If the court finds a party acted in bad faith or without just cause in prosecuting or objecting to an application in a guardianship proceeding, the court may require the party to pay for all or part ofthe costs of the proceeding {Tex. Estates Code Sec. 1155.151(c)} or to reimburse the ward’sestate for all or part of the attorney’s fees. {Tex. Estates Code Sec. 1155.054(d)}

1. Guardianship Contest

A contestant in a guardianship proceeding is entitled to attorney’s fees if he is appointedguardian as a result of the contest. Carney v. Aicklen, 587 S.W.2d 507, (Tex. Civ. App. - Tyler1979, writ ref’d n.r.e.). However, the Texas Supreme Court, in refusing the application for writ of error, wrote that it could not determine from the record the correctness of the lowercourt’s ruling on the attorney’s fees issue.

2. Proof

To obtain the court’s approval for attorney’s fees, the party should show that the attorney’sservices were reasonable and necessary for the preservation, management, and safekeeping ofthe estate. Pouncy v. Garner, 626 S.W.2d 337 (Tex. Civ. App. - Tyler 1981, writ ref’d n.r.e.);Barrett v. Parchman, 675 S.W.2d 289 (Tex. App. - Dallas 1984, no writ); Brown & Root U.S.A.,Inc. v. Trevino, 802 S.W.2d 13 (Tex. App. - El Paso 1990, no writ).


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X. ATTORNEY’S FEES A. General

3. Hearing on Temporary Guardianship

Attorney’s fees resulting from representation of a party in a hearing to determine the necessityfor temporary guardianship may be assessed under {Tex. Estates Code Sec. 1155.151} againstthe estate or the county if the estate is insufficient.

C. Contingent Fee Contracts

A guardian may contract to hire an attorney on a contingent fee basis to collect claims or recoverproperty of the estate. {Tex. Estates Code Sec. 1155.053} A guardian may not enter into acontingency-fee contract allowing the attorney more than one-third of the recovery withoutapproval of the court, however. {Tex. Estates Code Sec. 1155.053}

In approving a contract or conveyance under Sec. {Tex. Estates Code Sec. 1155.053}, the courtmust consider:

1. the time and labor that will be required, the novelty and difficulty of the questions to beinvolved, and the skills that will be required to perform the legal services properly;

2. the fee customarily charged in the locality for similar legal services;

3. the value of the property recovered or sought to be recovered;

4. the benefits to the estate that the attorney will be responsible for securing; and

5. the experience and ability of the attorney who will be performing the services. {Tex. Estates Code Sec. 1155.053}

D. Forfeiture of Attorney’s Fees

The conduct of the guardian or attorney may cause a forfeiture of attorney’s fees. See generallyDecedents’ Estates, 29 T.J.3rd 586 et seq.

An attorney retained by a ward who had been adjudicated to be of unsound mind could notrecover fees for legal services in a guardianship contest. Breaux v. Allied Bank of Texas, 699 S.W.2d 599 (Tex. App. - Houston [14th Dist.] 1985, writ ref’d n.r.e.).

When the guardian’s omission or malfeasance is at the root of the litigation, the estate is notrequired to reimburse the guardian for his attorney’s fees. Tindall v. State, 671 S.W.2d 691 (Tex.App. - San Antonio 1984, writ ref’d n.r.e.). In Tindall, the guardian incurred attorney’s fees indefense of a bill of review filed by the State because he had neglected to notify the State of aproposed tax-motivated gift.


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X. ATTORNEY’S FEES B. Attorney’s Fees in Temporary and Permanent Guardianships

A guardian who is removed from his position is not entitled to attorney’s fees in defending hisacts or for attempts to retain appointment. Gordon v. Terrence, 633 S.W.2d 649 (Tex. Civ. App. -Houston [14th Dist.] 1982, no writ); Dumitrov v. Hitt, 601 S.W.2d 472 (Tex. Civ. App. - Houston[14th Dist.] 1980, writ ref’d n.r.e.). However, if the guardian successfully defends a suit forremoval, he is entitled to attorney’s fees. Moore v. First City Bank, 707 S.W.2d 286 (Tex. App. -Fort Worth 1986, no writ). The court in Moore stated: “A guardian that is subject to a baselessand ill-founded removal action brought on behalf of the ward, should not be required to bear itsown expenses in defending such a vexatious action.”

A personal representative is not entitled to attorney’s fees in the prosecution of his own claimagainst the estate. Oldman v. Keaton, 597 S.W.2d 938 (Tex. Civ. App. - Texarkana 1980, writ ref’dn.r.e.).

A personal representative may not recover attorney’s fees for unfounded and unnecessarylitigation instituted by him. Neblett v. Butler, 162 S.W.2d 458 (Tex. Civ. App. - Galveston 1942,writ ref’d w.o.m.).

E. Reasonable Attorney’s Fees

On contested issues of fact, a party may demand a jury, and {Tex. Estates Code Sec. 1055.052}includes reasonable attorney’s fees. See Griffin v. Barr, 587 S.W.2d 477 (Tex. Civ. App. - Dallas1979, no writ).

F. Discovery Considerations in Contest for Attorney’s Fees

If a party fails to include in answers to interrogatories his designation of an expert on “reasonable and necessary attorney’s fees,” the expert is precluded from testifying. E. F. Hutton v. Youngblood,741 S.W.2d 363 (Tex. 1987).

XI. FEES OF AD LITEMS

A. Attorney Ad Litem

Court-appointed attorney ad litem and attorney’s fees are specifically provided for in {Tex.Estates Code Sec. 1054.055} and {Tex. Estates Code Sec. 1204.002}. These sections provide forreasonable compensation, which is left to court’s discretion, and these fees are considered a cost.

In Brown & Root, the appeals court reversed an award of attorney’s fees for the court-appointedad litem representing missing and unknown heirs in a personal injury action resulting from anon-the-job accident in which the employee died. Brown & Root, Inc. v. Trevino, 802 S.W.2d 13 (Tex. App. - El Paso 1990, no writ).


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XI. FEES OF AD LITEMS D. Forfeiture of Attorney’s Fees

The suit was originally brought by the parents and four surviving children of the employee.Before trial, a settlement was reached that provided $300,000 for the two minor children. Theattorney ad litem testified that he spent 500 hours on the case but offered no supporting timerecords, nor did he testify that his hourly rate was a “reasonable” rate or that the time expendedwas “necessary” for litigating the matter. The court awarded the attorney ad litem $125,000 inattorney’s fees, despite the fact that nine days earlier the trial court had awarded the attorney adlitem $450,000 for representing the missing and unknown heirs against other defendants in thesame cause of action. The appellate court held that the trial court abused its discretion.

What is a reasonable attorney fee is a question of fact to be determined by the trier of facts, andthe award must be supported by competent evidence. Great American Reserve Ins. Co. v. Button, 406S.W.2d 901 (Tex. 1966). A court does not have judicial authority to adjudicate the reasonablenessof attorney’s fees on judicial knowledge without actual evidence. Bullock v. Foster Cathead Co., 631S.W.2d 208 (Tex. Civ. App. - Corpus Christi 1982, no writ); Mills v. Mills, 559 S.W.2d 687 (Tex.Civ. App. - Fort Worth 1977, no writ).

For more information on payment of ad litem fees, see X. Attorneys Fees, earlier in this chapter.

B. Guardian Ad Litem

A guardian ad litem is entitled to “reasonable compensation for services in the amount set by thecourt and to be taxed as costs in the proceeding.” {Tex. Estates Code Sec. 1054.055}

XII. DEATH, RESIGNATION, OR REMOVAL

A. Death

If the guardian dies, the personal representative of the deceased guardian must file a finalaccounting and deliver all assets of the estate to the successor guardian. {Tex. Estates Code Sec.1203.102}

B. Resignation

The guardian may resign by filing a written application with the court, accompanied by a verifiedfinal account. {Tex. Estates Code Sec. 1203.101}

1. Acceptance of Resignation

The court may immediately accept the resignation and appoint a successor without citation ornotice if necessary, but the court may not discharge or release the person resigning as guardian until final order or judgment is rendered on the final account of the guardian. {Tex. EstatesCode Sec. 1203.102}


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XII. DEATH, RESIGNATION, OR REMOVAL A. Attorney Ad Litem

2. Discharge

A resigning guardian may not be discharged until the application has been heard, the exhibitand account or report examined, settled, and approved, and the guardian has satisfied thecourt that the guardian has delivered the estate, if there is any part of the estate remaining inthe possession of the guardian, or has complied with all orders of the court with relation tothe guardian’s trust. {Tex. Estates Code Sec. 1203.006}

3. Delivery of Ward’s Estate

The court at any time may order a resigning guardian who has all or part of the estate of award to deliver all or part of the ward’s estate to a person who has been appointed and hasqualified as a successor guardian. {Tex. Estates Code Sec. 1203.003}

C. Removal

The court or any interested person may move for the removal of the guardian for specifiedreasons set out in the Probate Code. {Tex. Estates Code Sec. 1203.055}; see {Bell v. Grossenbacher, 432 S.W.2d 575 (Tex. Civ. App. - San Antonio 1968, writ ref’d n.r.e.)}.

1. Removal without Notice

The court may remove a guardian without notice, if the guardian:

a. neglects to qualify within time required by law;

b. fails to file an inventory of the property of the guardianship estate within thirtydays after qualification;

c. fails to give a new bond when ordered to do so;

d. is absent from the state for three months at one time or moves out of the statewithout court permission;

e. cannot be served with notices because the guardian’s whereabouts are unknown,the guardian is eluding service, or the guardian is a nonresident with no residentagent to accept service of process;

f. has misapplied, embezzled, or removed from the state, or is about to misapply,embezzle, or remove from the state and there is clear and convincing evidence thatthe guardian all or any part of the property committed to his or her care;


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XII. DEATH, RESIGNATION, OR REMOVAL B. Resignation

g. has engaged in conduct towards the ward that would be considered abuse, neglector exploitation (see {Tex. Human Res. Code Sec. 48.002} for definition); or

h. has neglected to educate or maintain the ward as much as the ward’s means andthe condition of the ward’s estate permit. {Tex. Estates Code Sec. 1203.051}

In a proceeding to remove a guardian who has misapplied funds, engaged in abuse, neglect, or exploitation, or who has neglected to educate or maintain the ward, the court must appoint aguardian ad litem and an attorney ad litem. The same person may serve as both, as long asthere is no conflict between the two separate interests. {Tex. Estates Code Sec. 1203.051(b)}

If a court removes a guardian for any of the above reasons, the court clerk must issue noticeof an order that:

a. states the name of the ward and the removed guardian;

b. states the date the court signed the order of removal;

c. contains the following statement printed in 12-point bold font:

“If you have been removed from serving as guardian under Section1203.051(a)(6)(A) or (B), Estates Code, you have the right to contest the order ofremoval by filing an application with the court for a hearing under Section1203.056, Estates Code, to determine whether you should be reinstated asguardian. The application must be filed not later than the 30th day after the datethe court signed the order of removal.”

d. contains as an attachment a copy of the order of removal; and

e. is personally served on the removed guardian not later than the seventh day afterthe date the court signed the order of removal. {Tex. Estates Code Sec. 1203.0531}

2. Removal with Notice

Under {Tex. Estates Code Sec. 1203.052}, the court may remove a guardian on its ownmotion, or on the complaint of an interested person, after the guardian has been cited bypersonal service to answer at a time and place set in the notice, when:

a. sufficient grounds appear to support belief that the guardian has misapplied,embezzled, or removed from the state, or that the guardian is about to misapply,embezzle, or remove from the state, all or any part of the property committed to thecare of the guardian;


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XII. DEATH, RESIGNATION, OR REMOVAL C. Removal

b. the guardian fails to return any account or report that is required by law to bemade;

c. the guardian fails to obey any proper order of the court having jurisdiction withrespect to the performance of the guardian’s duties;

d. the guardian is proved to have been guilty of gross misconduct or mismanagement in the performance of the duties of the guardian;

e. the guardian becomes incapacitated, or is sentenced to the penitentiary, or fromany other cause becomes incapable of properly performing the duties of theguardian’s trust;

f. the guardian has engaged in conduct towards the ward that would be consideredabuse, neglect or exploitation (see {Tex. Human Res. Code Sec. 48.002} fordefinition), or neglects to educate or maintain the ward as liberally as the means ofthe ward’s estate and the ward’s ability or condition permit;

g. the guardian interferes with the ward’s progress or participation in programs in the community;

h. the guardian fails to comply with the requirements for private professionalguardians; {Tex. Estates Code Sec. 1104.251}

i. the court determines that, because of the dissolution of the joint guardians’marriage, the termination of the guardians’ joint appointment and the continuationof only one of the joint guardians as the sole guardian is in the ward’s best interest;or

j. the guardian would be ineligible to be appointed as guardian under Chapter 1104.{Tex. Estates Code Sec. 1203.052}

Effective Sept. 1, 2017, the court may remove a guardian for one of the above reasons:

a. on the court’s own motion, after the guardian has been notified by certified mail to answer at a time and place set in the notice; or

b. on the complaint of an interested person, after the guardian has been cited bypersonal service to answer at a time and place set in the notice. {Tex. Estates CodeSec. 1203.052(a-1)}


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3. Additional Grounds for Removal

The guardian may also be removed for:

a. failing to endorse his allowance or rejection to a claim within thirty days; {Tex.Estates Code Sec. 1157.052}

b. wrongful purchase of a claim against the estate; {Tex. Estates Code Sec.1157.202}

c. neglecting to file a deed of trust securing a lien on ward’s property; or {Tex.Estates Code Sec. 1158.559}

d. failing to maintain the certification required by Chapter 1104.{Tex. Estates CodeSec. 1203.052}

In a proceeding to remove a guardian, the court must appoint a guardian ad litem and anattorney ad litem. The court may appoint the same person to both positions unless a conflictexists between the interests to be represented by the guardian ad litem and attorney ad litem.{Tex. Estates Code Sec. 1203.051(b)}

4. Appointment of Successor

If the necessity exists, a court may immediately appoint a successor guardian without citationor notice but may not discharge the person removed as guardian or release the person orsureties on the bond until the final order or judgment is rendered on the final account of theguardian. Subject to order of the court, a successor guardian has the rights and powers of theremoved guardian. {Tex. Estates Code Sec. 1203.054}

The appointment of a successor guardian under Sec. 1203.102 does not preclude an interested person from filing an application to be appointed guardian of the ward. The court must hold a hearing on the application. At the conclusion of the hearing and after considering therequirements for guardianship under Chapter 1104, the court may set aside the appointmentof the successor guardian and appoint the applicant as the ward’s guardian if the applicant isnot disqualified. {Tex. Estates Code Sec. 1203.102(c)}

If the court sets aside the appointment of the successor guardian, the court may require thesuccessor guardian to prepare and file, under oath, an accounting of the estate and to detailthe disposition the successor has made of the estate property. {Tex. Estates Code Sec.1203.102(d)}


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5. Prior Right

When a person has a prior right to act as guardian and has not waived that right, the courtmust remove the previous guardian. Novak v. Schellenberg, 669 S.W.2d 162 (Tex. Civ. App. -Corpus Christi 1984, no writ); Bell v. Grossenbacher, 432 S.W.2d 575 (Tex. Civ. App. - SanAntonio 1968, writ ref’d n.r.e.). A prior right to be guardian may, however, be waived eitherexpressly or by conduct. Estate of Morris v. First Int’l Bank, 664 S.W.2d 132 (Tex. Civ. App. -San Antonio 1983, no writ). Citation must be by personal service upon the guardian. {Tex.Estates Code Sec. 1203.052}

6. Minor at Least 12 Years of Age

A minor upon attaining the age of 12 may select another guardian with the court’s approvaland a finding that the choice is in the minor’s best interest. {Tex. Estates Code Sec. 1104.054} In re Carrigan’s Estate, 517 S.W.2d 817 (Tex. Civ. App. - Tyler 1974, no writ). At that point thecourt must make the appointment and revoke the letters of guardianship of the formerguardian. {Tex. Estates Code Sec. 1104.054}

7. Named Guardian Attains Adulthood

If a guardian named in a will was not an adult at the time the will was probated, he or she mayupon becoming an adult, apply to be guardian and the court must revoke any prior letters.{Tex. Estates Code Sec. 1203.104}

D. Successor Guardians for Wards of Guardianship Programs or Governmental Entities

If a guardianship program or governmental entity serving as a guardian for a ward becomes aware of family member or friend of the ward or any other interested person who is willing and able toserve as the ward’s successor guardian, the program or entity must notify the court in which theguardianship is pending of the individual’s willingness and ability.

When the court is notified of the existence of a proposed successor guardian or the courtotherwise becomes aware of a family member, friend, or any other interested person who iswilling and able to serve as a successor guardian for a ward of a guardianship program orgovernmental entity, the court must determine whether the proposed successor guardian isqualified to serve as the ward’s successor guardian.

If the court finds that the proposed successor guardian for a ward is not disqualified from beingappointed as the ward’s successor guardian under Sec. 1104.351-.357 and that the appointment isin the ward’s best interests, the guardianship program or governmental entity serving as theward’s guardian or the court, on the court’s own motion, may file an application to appoint theindividual as the ward’s successor guardian. {Tex. Estates Code Secs. 1203.151-153}


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XIII. SPECIAL GUARDIANSHIPS

A. Temporary Guardianships

If a court is presented with substantial evidence that a person may be a minor or otherincapacitated person, and the court has probable cause to believe that the person or person’sestate, or both, requires the immediate appointment of a guardian, the court must appoint atemporary guardian with limited powers as the circumstances of the case require. {Tex. EstatesCode Sec. 1251.001(a)}

The person retains all rights and powers that are not specifically granted to the person’stemporary guardian by court order. {Tex. Estates Code Sec. 1251.001(b)}

1. Application

A sworn, written application for the appointment of a temporary guardian must be filedbefore the court appoints a temporary guardian. {Tex. Estates Code Sec. 1251.003}

2. Appointment of Department of Aging and Disability Services

The appointment of the Department of Aging and Disability Services as a temporary guardianmust be made only as a last resort. {Tex. Estates Code Sec. 1251.011}

3. Written Application

A sworn, written application for the appointment of a temporary guardian must be filedbefore the court appoints a temporary guardian. The application must state:

a. the name and address of the person who is the subject of the guardianshipproceeding;

b. the danger to the person or property alleged to be imminent;

c. the type of appointment and the particular protection and assistance beingrequested;

d. the facts and reasons supporting the allegations and requests;

e. the name, address, and qualification of the proposed temporary guardian;

f. the name, address, and interest of the applicant; and


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XIII. SPECIAL GUARDIANSHIPS D. Successor Guardians for Wards of Guardianship Programs or Governmental Entities

g. if applicable, that the proposed temporary guardian is a private professionalguardian who is certified under Subchapter C, Chapter 111, Government Code, andhas complied with the requirements of Chapter 1104. {Tex. Estates Code Sec.1251.003}

4. Appointment of Attorney

On the filing of an application for temporary guardianship, the court must appoint an attorney to represent the proposed ward in all guardianship proceedings in which independent counselhas not been retained by or on behalf of the proposed ward. {Tex. Estates Code Sec.1251.004}

5. Notice

Once the application for temporary guardianship is filed, the clerk issues notice that must beserved on the respondent, the respondent’s appointed attorney, and the proposed temporaryguardian named in the application (if that person is not the applicant). The notice mustdescribe the rights of the parties and the date, time, place, purpose, and possible consequences of a hearing on the application. A copy of the application must be attached to the notice.{Tex. Estates Code Sec. 1251.005}

6. Hearing

The court must hold a hearing no later than the tenth day after the application is filed unlessthe hearing date is postponed as provided by {Tex. Estates Code Sec. 1251.006}. At a hearing, the respondent has the right to:

a. receive prior notice;

b. have representation by counsel;

c. be present;

d. present evidence and confront and cross-examine witnesses; and

e. have the hearing closed if requested by the respondent or the respondent’sattorney. {Tex. Estates Code Sec. 1251.008}

The respondent or the respondent’s attorney may consent to postpone the hearing for nomore than thirty days after the application is filed. {Tex. Estates Code Sec. 1251.006(c)}


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XIII. SPECIAL GUARDIANSHIPS A. Temporary Guardianships

7. Appearance

If the applicant is not the proposed temporary guardian, the court may not grant a temporaryguardianship before a hearing on the application unless the proposed temporary guardianappears in court. {Tex. Estates Code Sec. 1251.009}

8. Presence in Court

The Corpus Christ Court of Appeals has determined that the proposed ward must be presentat the hearing or the court must take evidence and make a finding that it is not in the bestinterest of the ward to attend the hearing. In the Guardianship of B.A.G., 794 S.W.2d 510 (Tex.App. - Corpus Christi 1990, no writ).

9. Order

The order granting the temporary guardianship must assign only those duties andresponsibilities necessary to protect against the imminent danger shown and the temporaryguardianship remains in effect no longer than sixty days unless there is a contest. {Tex.Estates Code Sec. 1251.151}

If an application for a temporary guardianship, for the conversion of a temporaryguardianship to a permanent guardianship, or for a permanent guardianship is challenged orcontested, the court, on the court’s own motion or on the motion of any interested party, may appoint a new temporary guardian or grant a temporary restraining order (or both) under Tex. R. Civ. P. 680 without issuing additional citation if the court finds that the appointment or the issuance of the order is necessary to protect the proposed ward or his estate. {Tex. EstatesCode Sec. 1251.051}

A temporary guardian appointed under Sec. 1251.051 must qualify in the same mannerrequired of a guardian. The term of the temporary guardian expires at the conclusion ofwhichever of the following events happens first:

(1) the hearing challenging or contesting the application;

(2) the date the court appoints a permanent guardian; or

(3) nine months after the date the temporary guardian qualifies, unless the courtextends the term by order issued after a motion and hearing. {Tex. Estates Code Sec. 1251.052(b)}


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10. Letters of Temporary Guardianship

When the temporary guardian files the oath and bond required, the court order appointing the temporary guardian takes effect without the need for issuance of letters of guardianship. Theorder issued by the court is evidence of the temporary guardian’s authority to act. {Tex.Estates Code Sec. 1251.101}

11. Bond

The bond for the temporary guardian must be in a sum set by the court. {Tex. Estates CodeSec. 1105.154}

At the time or after an order appointing a guardian is signed by the court but before letters ofguardianship are issued, on a party’s request, a court may require the deposit for safekeepingof cash, securities, or other assets of a ward or proposed ward in a financial institution. {Tex.Estates Code Sec. 1101.156(a)}

If the court requires a deposit for safekeeping, the amount of bond required from theguardian shall be reduced in proportion to the amount of cash or the value of the securities ofother assets deposited. {Tex. Estates Code Sec. 1101.156(b)}

12. Qualification of Permanent Guardian

The qualification of a permanent guardian terminates a temporary guardianship. {Tex. EstatesCode Sec. 1251.052}; see also Blackburn v. Gantt, 561 S.W.2d 269 (Tex. Civ. App. - Houston[1st Dist.] 1978, no writ).

B. Non-Resident Guardians

1. General

A non-resident may be appointed as guardian of a non-resident ward’s estate located in Texasunder the same procedures provided for appointment of a permanent resident guardian withfew additional requirements. {Tex. Estates Code Sec. 1252.051}

2. Additional Requirements

In addition to the normal requirements:

a. the applicant must show that he or she has been duly appointed and remains asguardian of the ward in another jurisdiction;


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b. the application must be filed in the county where all or part of the ward’s estate islocated; (See Henderson v. Shell Oil Co., 208 S.W.2d 863 (Tex. 1947))

c. the applicant must file a complete transcript of the appointment proceedings in the other state, and the transcript must be certified and attested to by the clerk of thecourt and cross-exemplified by the judge of the court; and

d. the applicant must file a power of attorney appointing a resident agent. {Tex.Estates Code Sec. 1252.052}

3. Removal of Property from State

A non-resident guardian, whether or not qualified under the Texas Probate Code, isauthorized to remove the ward’s property from the state if there are no debts against the estate or the debts are secured by bond or removal would not conflict with the tenure of theproperty. {Tex. Estates Code Sec. 1252.055}; see also Bradford v. Lincoln Bank & Trust Co., 96S.W.2d 821 (Tex. Civ. App. - El Paso 1936, writ dism’d)

C. Resident Guardian of Non-Resident Minor or Incapacitated

A resident guardian may be appointed guardian of a non-resident minor or incompetent if anecessity exists. The appointment must be made as if the ward were a resident; however, if anon-resident guardian later qualifies in Texas, he or she may displace the resident guardian andthe resident guardianship is closed. {Tex. Estates Code Sec. 1252.001-.003}

XIV. AVOIDING GUARDIANSHIP

The Texas Estates Code, Trust Code, and Family Code each contain provisions for the entrustmentof a minor’s or incapacitated person’s estate without the necessity of a guardianship. See generallyDavis, “Problems of Guardianship Administration in Texas,” 47 Tex.L.Rev. 1124, 1146 (1969).

A. Management Trusts

1. Creation

The creation of management trust is governed by Estates Code Chapter 1301. The pool ofpeople who can apply for creation of one of these trusts includes the guardian of a ward or award’s estate, attorney ad litem, guardian ad litem, any person interested in the welfare of anallegedly incapacitated person who does not have a guardian, or a person who has only aphysical disability. {Tex. Estates Code Sec. 1301.051}


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XIV. AVOIDING GUARDIANSHIP B. Non-Resident Guardians

On application by one of these people, the court in which the guardianship proceeding ispending may enter an order that creates a trust for the management of funds of the person for whom the application was filed if the court finds that this is in the person’s best interests.{Tex. Estates Code Sec. 1301.053}

{Tex. Estates Code Sec. 1301.101} governs the terms of the management trust. {Tex. EstatesCode Sec. 1301.054} also allows a court to create a management trust for an incapacitatedperson who does not have a guardian appointed.

If the application for creation of the trust is filed by a person who has only a physicaldisability, the court may, but is not required to, appoint an attorney ad litem or guardian adlitem for the person. {Tex. Estates Code Sec. 1301.054(c-1)}

A management trust created for a person who has only a physical disability must provide thatthe trustee:

a. serves without giving a bond; and

b. is entitled to receive, without court approval, reasonable compensation forservices the trustee provides. {Tex. Estates Code Sec. 1301.101(a-1)}

2. Accounting

An initial accounting is required for trustees administering a trust created under Chapter 1301for a person who is a ward under an existing guardianship, or a proposed ward with anapplication for guardianship filed and pending. Not later than the thirtieth day after thetrustees receives property into the trust, the trustee must file with the court in which theguardianship proceeding is pending a report describing all property held in the trust on thedate of the report and specifying the value of the property on that date. {Tex. Estates CodeSec. 1301.1535}

The trustee of all but one type of management trust must also prepare and file with the courtan annual accounting of transactions. {Tex. Estates Code Sec. 1301.154(a)} The trustee of atrust created for a person who has only a physical disability is not required to prepare thisannual accounting. {Tex. Estates Code Sec. 1301.154(d)}

3. Transfer to Pooled Trusts

If a court decides it is in the ward’s or incapacitated person’s best interests, the court mayorder the transfer of all property in a management trust created under {Tex. Estates Code Sec. 1301.053} to a subaccount of a pooled trust. The transfer must be treated as a continuation of the management trust and may not be treated as establishing a new trust for purposes ofevaluating the ward’s eligibility for medical assistance under {Human Resources Code Chapter


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XIV. AVOIDING GUARDIANSHIP A. Management Trusts

32} or federal law. The court may not allow termination of the management trust createdunder Chapter 1301 until all the property in the management trust has been transferred to thesubaccount of the pooled trust. {Tex. Estates Code Sec. 1301.202}

In deciding whether to transfer property from a management trust to a pooled trustsubaccount for a person who has only a physical disability, the court may, but is not requiredto, appoint an attorney ad litem or guardian ad litem. {Tex. Estates Code Sec. 1301.202(a-1)}

A subaccount must terminate on the earliest of:

a. the beneficiary’s 18th birthday, if the beneficiary is not disabled;

b. the beneficiary’s death; or

c. an order of the court terminating the subaccount. {Tex. Estates Code Sec. 1302.005}

On termination of the subaccount, any property remaining in the subaccount after making any required payments to reimburse medical assistance programs shall be distributed to:

a. the beneficiary, if living and not incapacitated;

b. the beneficiary’s guardian, if the beneficiary is alive and incapacitated; or

c. the personal representative of the beneficiary’s estate, if the beneficiary is deceased. {Tex. Estates Code Sec. 1302.005}

Fees and required accounting for pooled trusts are addressed by {Tex. Estates Code Sec.1302.006}.

4. Termination

If the person for whom a trust is created under Chapter 1301 is a minor, the trust terminates:

a. on the person’s death or the person’s 18th birthday, whichever is earlier; or

b. on the date provided by court order, which may not be later than the person’s25th birthday.

If the person for whom a trust is created under Chapter 1301 is a not minor, the trustterminates:

a. according to the terms of the trust;


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b. on the date the court determines that continuing the trust is no longer in theperson’s best interests, subject to {Tex. Estates Code Sec. 1301.202}; or

c. on the person’s death. {Tex. Estates Code Sec. 1301.203}

Effective Sept. 1, 2017, on application by the guardian or another person interested in theward’s welfare, a court may order the guardianship terminated, settled and closed if the wardno longer needs a guardian because all the ward’s assets have been placed in an ABLE account established under the Texas Achieving a Better Life Experience (ABLE) Program underChapter 54, Subchapter J of the Texas Education Code, and the ward is the designatedbeneficiary of the account. {Tex. Estates Code Sec. 1202.003}

B. The Durable Power of Attorney

Chapter 751 of the Texas Estates Code contains the most recent rendition of Texas’ power ofattorney law and is known as the Texas Durable Power of Attorney Act. All acts performed bythe attorney in fact have the same effect and inure to the benefit of and bind the principal and the principal’s successors in interest as if the principal were not disabled or incapacitated. Thedurable power of attorney must be signed by the principal and acknowledged by a notary. {Tex.Estates Code Sec. 751.002} The durable power of attorney act has a statutory form and allowsthe principal to grant broad authority to the attorney in fact. {Tex. Estates Code Sec. 752.001}

C. Durable Power of Attorney for Health Care

The durable power of attorney for health care purposes is located in the Health and Safety Code.{Tex. Health & Safety Code Sec. 166.032} The physician’s certification must be filed in themedical records of the patient. The principal must sign the power of attorney in the presence oftwo disinterested witnesses who must also sign the document as witnesses. In lieu of signingbefore the two witnesses, the principal may sign the directive and have the signatureacknowledged before a notary public. {Tex. Health & Safety Code Sec. 166.032(b-1)} The statute authorizing the creation of the durable power of attorney for health care provides the form to beused. {Tex. Health & Safety Code Sec. 166.033}

D. Management of Community Property

If the court renders an order directing the guardian of the estate of the incapacitated spouse toadminister certain community property as provided by {Tex. Estates Code Sec. 1353.004}, thecommunity property administered by the guardian is considered the incapacitated spouse’scommunity property, subject to the incapacitated spouse’s sole management, control, anddisposition under {Tex. Fam. Code Sec. 3.102}. If the court renders an order directing thespouse who is not incapacitated to administer certain community property as provided by {Tex.Estates Code Sec. 1353.005}, the community property administered by the spouse who is notincapacitated is considered that spouse’s community property, subject to that spouse’s sole


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management, control, and disposition under Sec. 3.102, Family Code. {Tex. Estates Code Sec.1353.005}

Chapter 1353 does not partition community property between an incapacitated spouse and aspouse who is not incapacitated. {Tex. Estates Code Sec. 1353.001}

An order described by {Tex. Estates Code Sec. 1353.005} does not affect the enforceability of acreditor’s claim existing on the date the court renders the order. {Tex. Estates Code Sec.1353.006}

Management of a married couple’s community property may be divided between the competentspouse and a guardian of the estate of the incapacitated spouse. This division of managementdoes not partition community property into separate property. The property given to thecompetent spouse to manage is that spouse’s sole management community property. Theproperty given to the guardian to manage is the incapacitated spouse’s sole managementcommunity property, and the order dividing the property for management purposes does notaffect a creditor’s claim existing on the date of the order.

E. Community Administration

When a parent dies intestate leaving only community property, a community administration maybe useful in avoiding a guardianship for his or her minor children. The surviving spouse mayqualify as community administrator and will have power to control, manage, and dispose of thecommunity estate. {Tex. Estates Code Sec. 101.052} In essence, the Code allows a survivingspouse to administer the entire community until demand is made for partition and distribution. It is, therefore, possible for the surviving spouse to continue management until the children gainmajority. See Davis, “Problems of Guardianship Administration in Texas,” 47 Tex.L.Rev. 1124,1154 (1969).

F. No Administration of Community Property

{Tex. Estates Code Sec. 453.003} provides that a surviving spouse has the power to sue and besued for the recovery of community property; to sell, mortgage, lease, and otherwise dispose ofcommunity property for the purpose of paying community debts; to collect all claims due thecommunity estate; and such other powers necessary to preserve the community property,discharge community debts, and wind up community affairs. This particular provision is of littleuse because banks or other depositories, insurance companies, and title companies usuallydemand the appointment of a personal representative of the decedent’s estate and of minorchildren before a release of funds or title conveyance. See Davis, “Problems of GuardianshipAdministration in Texas,” 47 Tex.L.Rev. 1124, 1156 (1969).


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XIV. AVOIDING GUARDIANSHIP D. Management of Community Property

G. Payment of Claims to County Clerk

When a minor or incapacitated person is entitled to money of less than $100,000, the debtor maypay the money to the county clerk in the county of residence of the minor or incapacitatedperson. {Tex. Estates Code Sec. 1355.002} The county clerk must invest the funds in aninterest-bearing account. The father, mother, or spouse (if not estranged) may withdraw thefunds for the benefit of the minor or incapacitated person upon giving bond in double theamount withdrawn. The funds must be used for the benefit of the minor or incapacitated person, and the individual withdrawing the funds is not entitled to a fee or commission. {Tex. EstatesCode Sec. 1355.103}

H. Sale of Minor’s Property without Guardianship

The parent of a minor may apply to the court to sell the minor’s real or personal propertywithout a guardianship when the net value of the minor’s interest in the property is less than$100,000. {Tex. Estates Code Sec. 1351.001} If a minor does not have a parent or managingconservator willing or able to file an application, the court may appoint an attorney ad litem orguardian ad litem to act on the minor’s behalf for the limited purpose of applying for an order tosell the minor’s interest in property. {Tex. Estates Code Sec. 1351.001(b)}

Proceeds from the sale must be placed in the registry of the court and may be withdrawn inaccordance with {Tex. Estates Code Sec. 1355.103}.

I. Minor Ward’s Estate of $100,000 or Less

When a minor’s estate is under guardianship, and the estate consists only of cash or cashequivalents of no more than $100,000, the guardianship may be terminated and the funds placedin the court’s registry as provided by {Tex. Estates Code Sec. 1354.007-.008} and {Tex. EstatesCode Sec. 1204.001}

PRACTICE NOTE: Funds Withdrawn From Clerk - Under the various sections allowingdeposits of funds of incapacitated persons having no guardian into the registry of the court, there is a method of obtaining the money out from the registry for use of the incapacitated personunder Chapter 1355. The father, mother, or spouse may withdraw this money for the benefit ofthe creditor (the incapacitated person), but no fees or commissions may be allowed to thecustodian for taking care of handling or spending this withdrawn money. A bond of double theamount and a final accounting are required. {Tex. Estates Code Sec. 1355.104}

J. Negligible Estates

Whenever a ward’s estate becomes so negligible that maintaining a guardianship would beburdensome, the court may close the estate and order that the income of the estate be paid to a


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XIV. AVOIDING GUARDIANSHIP G. Payment of Claims to County Clerk

parent or some other person who has acted as a guardian without liability to account to the courtfor income. {Tex. Estates Code Sec. 1204.001}

K. Gifts under the Texas Uniform Gifts to Minors Act

An inter vivos or testamentary gift may be made to a minor by the donor’s appointment of acustodian to receive and invest the gift. The custodian has authority without court order to invest and expend the funds from the gift for the support, maintenance, education, and benefit of theminor. {Tex. Prop. Code Sec. 141.001, et. seq.}

L. Suit and Recovery by Next Friend

A suit may be brought on behalf of a minor by a next friend when the minor has no guardian,and the next friend may take possession of the property recovered upon the making of a bond.The next friend may invest such funds in an interest-bearing account and provide for asafekeeping agreement in order to lower the bond. The next friend may also petition the courtfor the creation of a trust for the minor’s benefit. {Tex. Prop. Code Sec. 142.001, et. seq.}However, a Chapter 142 trust cannot be created when there is a guardianship over a minor orincapacitated person. Rodriguez v. Gonzalez, 830 S.W.2d 799 (Tex. App. - Corpus Christi 1992, nowrit).

PRACTICE NOTE: Attorney’s Fees While Proceeding “as next friend”

As mentioned earlier in the discussion about the case of Malouf v. Mulaula, attorneys areproceeding at their own risk with respect to attorney’s fees contracts by having their clientsproceeding “as next friend.” Malouf v. Mulaula, 802 S.W.2d 268 (Tex. App. - Waco 1990, writdenied).

In Massey v. Galvan, 822 S.W.2d 309 (Tex. App. - Houston [14th Dist.] 1992, writ denied), thecourt of appeals abrogated an attorney’s fee contract allegedly made on behalf of two minorsbecause the person acting “as next friend” (the wife of the decedent) had no authority to enterinto such contract because the minors had a legal guardian - the natural guardian (the former wife of the decedent and the mother of the minors). The Court noted that one could only proceed as“next friend” when there wasn’t a legal guardian and the contract entered on behalf of the minors was not binding upon their estates as it was entered into by someone without authority at thetime the contract was made. Subsequent to the filing of the “next friend” lawsuit, the second wife became the guardian of the minors’ estates.

Any suggestion of ratification by this event was rejected by the court of appeals because of thefailure of the guardian of the estate to first obtain probate court permission to file the wrongfuldeath lawsuit on behalf of the minors. Proceeding as “next friend” has its limitations as discussed by the appellate court in Stern v. Wonzer, 846 S.W.2d 939 (Tex. App. - Houston [1st Dist.] 1993,no writ). In its decision limiting the attorney to a contingency fee of one-third, including


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XIV. AVOIDING GUARDIANSHIP J. Negligible Estates

expenses, the court found the limitation upon guardians’ contingency fee agreements applied to“next friends.”

M. Receivership

When no guardian has been appointed for a minor or incapacitated person and there is nonecessity for a guardian, the court may appoint a receiver to take charge of the estate if it appearsto be in danger of injury, loss, or waste. The receiver must make a bond. When the danger hasabated, the receivership must terminate and the receiver must deliver the estate to the personhaving custody of the minor or incapacitated person. {Tex. Estates Code Sec. 1354.001-.002}

A receiver appointed by the probate court to protect the estate of a minor or incapacitated isentitled to be compensated in the same manner as a guardian. {Tex. Estates Code Sec. 1354.006}

N. Managing Conservatorships

Because several courts have now concluded that a managing conservatorship is synonymous with a guardianship of the person, that type of custodial management may sometimes be used in placeof a guardian of the person.

O. School Admission

Because {Tex. Estates Code Sec. 1101.101} excludes the creation of guardianships for theprimary purpose of enrollment in school, it is now difficult to obtain a guardianship on a minor if there is any evidence that it is being sought to satisfy the requirements of a school registrar. {Tex. Educ. Code Sec. 21.031(d)} however, allows the board of trustees of a school district to adoptguidelines for admission to a school separate from establishment of a guardianship.

P. Consent for Emergency Care

Often hospital personnel or doctors will tell a family member that a temporary guardianship isnecessary to obtain consent for emergency treatment for someone who is eithernon-communicative or cannot communicate coherently. A provision in the Health & Safety Code provides other means to obtain the necessary consent for emergency health care. {Tex. Health &Safety Code Sec. 773.008} provides that consent for emergency care of an individual is notrequired if:

1. the individual is:

a. unable to communicate because of an injury, accident, or illness or is unconscious; and

b. suffering from what reasonably appears to be a life-threatening injury or illness;


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XIV. AVOIDING GUARDIANSHIP L. Suit and Recovery by Next Friend

2. a court of record orders the treatment of an individual who is in an imminent emergency toprevent the individual’s serious bodily injury or loss of life; or

3. the individual is a minor who is suffering from what reasonably appears to belife-threatening injury or illness and whose parents, managing or possessory conservator, orguardian is not present.

Q. Surrogate Decision Making

A procedure called surrogate decision making allows certain individuals to make medicaldecisions for incapacitated individuals who are in hospitals or nursing homes or who arereceiving home-support and community-support services. This will certainly reduce the need fortemporary guardianships and should reduce the need for permanent guardianships that arecreated only for medical consent purposes. {Tex. Health & Safety Code Sec. 313.001}

R. Supported Decision Making

Subchapter A of Texas Estates Code Chapter 1357, which is an alternative support vehicle forguardianships, contains the provisions governing supported decision making, intended to be “aprocess of supporting an accommodating an adult with a disability to enable the adult to makelife decisions, including decisions related to where the adult wants to live, the services, supports,and medical care the adult wants to receive, whom the adult wants to live with, and where theadult wants to work, without impeding the self-determination of the adult.” {Tex. Estates CodeSec. 1357.002(3)}

Supported decision making is accomplished by an agreement between the parties. {Tex. EstatesCode Sec. 1357.051} A sample form is provided at {Tex. Estates Code Sec. 1357.056}

The agreement can be terminated:

1. by either party or by the terms of the agreement itself;

2. by the Department of Family and Protective Services, if it finds that the adult with adisability has been abused, neglected, or exploited by the supporter; or

3. if the supporter is found criminally liable for abuse, neglect, or exploitation of the adult with a disability. {Tex. Estates Code Sec. 1357.053}

XV. CONCLUSION

Largely because of increased life expectancies, prevalence of diseases such as Alzheimer’s anddementia, and litigation on behalf of minors resulting in large recoveries, there has been a major


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XV. CONCLUSION P. Consent for Emergency Care

increase in filing applications for guardianship. In fact, guardianship proceedings have become sucha major part of the probate courts’ dockets nationwide that a committee to promulgate minimumnational standards was created by the National College of Probate Judges, the National Center forState Courts, the State Justice Institute, and the American College of Trust and Estate CounselFoundation. In late 1993, the Commission on National Probate Court Standards published itsguardianship recommendations in the National Probate Court Standards. Texas guardianship lawmeets these minimum standards.


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XV. CONCLUSION R. Supported Decision Making

TEMPORARY GUARDIANSHIP CHECKLIST

Judicial Checklist for a Temporary Guardianship

Appointment of Temporary Guardian Prior to Application

Does the court have substantial evidence that a person is a minor or otherincapacitated person? YES NO

Does the court have probable cause to believe that the incapacitated person and/or person’s estate is in imminent danger? YES NO

Has the court appointed a temporary guardian with such limited powers asthe circumstances of the case require, that is, only those powers and dutiesthat are necessary to protect the ward against the imminent danger? YES NO

Has the court signed the order of appointment, which describes the limitedpowers and duties of the temporary guardian? YES NO

Application for Appointment of Temporary Guardian and Hearing

Has a written application for the appointment of a temporary guardian been filed either before the court appointed the temporary guardian or not laterthan the end of the next day of “business” of the court after the date ofappointment of the temporary guardian? YES NO

Does the application state:

(1) the name and address of the person who is the subject of theguardianship proceeding;

(2) the danger to the person or property alleged to be imminent;

(3) the type of appointment and the particular protection and assistancebeing requested;

(4) the facts and reasons supporting the allegations and requests;

(5) the proposed temporary guardian’s name, address, and qualification;

(6) the applicant’s name, address, and interest; and


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TEMPORARY GUARDIANSHIP CHECKLISTJudicial Checklist for a Temporary Guardianship

(7) if applicable, that the proposed temporary guardian is a privateprofessional guardian who is certified under Subchapter C, Chapter 111,Government Code, and has complied with the requirements ofSubchapter G, Chapter 1104? YES NO

At the time of the filing of the application for temporary guardianship or atthe time the court appointed the temporary guardian, whichever occursearlier, has the court appointed an attorney ad litem to represent theproposed ward in all guardianship proceedings in which independentcounsel has not been retained by or on behalf of proposed ward? YES NO

If the applicant is not the proposed temporary guardian, has the proposedtemporary guardian appeared in court? YES NO

On the filing of the application for temporary guardianship, has the courtordered the clerk to serve notice on the proposed ward, the proposedward’s appointed attorney, and the proposed temporary guardian settingforth the rights of the parties and the date, time, place, purpose, andpossible consequences of a hearing on the application? YES NO

Has the court ordered the clerk to attach to the notice a copy of theapplication and, if applicable, a copy of the order appointing the temporaryguardian? YES NO

Has the court scheduled a hearing on the application for temporaryguardianship for not later than the tenth day after the date of the filing ofthe application, unless the hearing date is extended as provided by Sec.1251.005 of the Estates Code? YES NO

Has the court set the hearing for the earliest possible date so that thehearing takes precedence over all matters except for older matters of thesame character? YES NO

At the hearing, has the court allowed the proposed ward the right:

* to receive prior notice;

* to be represented by counsel;

* to be present;

* to present evidence and cross-examine witnesses; and


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* to a closed hearing, if requested by the proposed ward or the proposed ward’s attorney? YES NO

At the conclusion of the hearing on the application for temporaryguardianship, has the court concluded that the applicant has establishedsubstantial evidence, that the person is a minor or other incapacitatedperson and the following types of imminent danger:

* that the proposed ward is a minor or other incapacitated person;

* that there is imminent danger that the physical health of the proposedward will be seriously impaired; or

* that the proposed ward’s estate will be seriously damaged ordissipated? YES NO

Has the court appointed a temporary guardian with only those powers andduties that are necessary to protect the proposed ward against the imminent danger shown? YES NO

Has the court signed the order of appointment, which describes the limitedpowers and duties of the temporary guardian? YES NO

Does the order:

* set an expiration date for the temporary guardianship not later than the sixtieth day after the appointment of the temporary guardian, in anuncontested case; or

* set an expiration date for the temporary guardianship conclusion ofthe hearing or for a date not later than sixtieth day after the appointment of the temporary guardian, whichever is later, in a contested case? YES NO

Has the appointed guardian filed the oath and bond as required by Chapter1105 of the Estates Code? YES NO

Has the court ordered the clerk to note the appointed guardian’scompliance with the oath and bond requirements on a certificate attachedto the order? YES NO


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Accounting and Closing the Temporary Guardianship

At the expiration of the temporary guardianship, has the temporaryguardian filed with the clerk a sworn list of all property of the estate thatcame into the temporary guardian’s possession, a return of all sales made by the temporary guardian, and a full exhibit and account of all the temporaryguardian’s acts during the term of the temporary guardianship? YES NO

In closing the temporary guardianship, has the court:

* acted on the list, return, and exhibit and account filed by the temporary guardian;

* immediately entered an order requiring the temporary guardian todeliver the estate remaining in the temporary guardian’s possession tothe person who is legally entitled to the possession of the estate;

* discharged the temporary guardian; and

* released the sureties on the bond on proof that the temporary guardian delivered the property to the person entitled to it? YES NO

PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH

CHECKLIST

Checklist for Preliminary Guardianship Matters

Jurisdiction

Is this case “incident to an estate” or “appertaining to an estate” because itinvolves:

* the appointment of guardians; the issuance of letters of guardianship; a claim by or against a guardianship estate;

* all actions for trial of title to land incident to a guardianship estate andfor the enforcement of liens incident to a guardianship estate;

* all actions for trial of the right or property incident to the guardianship estate; or


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH CHECKLISTChecklist for Preliminary Guardianship Matters

* generally, all matters relating to the settlement, partition, ordistribution of a guardianship estate? YES NO

Is this case not a suit by or against a guardian? YES NO

Venue

If the proposed ward has a domicile or fixed place of residence in Texas,has the guardianship application been filed in the county in which theproposed ward resides? YES NO

If the proposed ward does not have a domicile or fixed place of resident inTexas, has the guardianship application been filed:

* in the county in which the proposed ward is located on the day theapplication is filed; or

* in the county in which the principal estate of the proposed ward islocated? YES NO

If the proposed ward is a minor, has the guardianship application beenfiled:

* in the county in which both the minor’s parents reside;

* in the county in which the parent who is the sole managingconservator of the minor resides, or in the county in which the parentwho is the joint managing conservator with the greater period ofphysical possession of and access to the minor resides, if the parents donot reside in the same county;

* in the county in which the sole living parent resides, if only one parentis living and the living parent has custody of the minor;

* in the county in which the last surviving parent having custody resided, if both parents are dead but the minor was in the custody of a deceasedparent; or

* in the county in which both deceased parents resided at the time oftheir simultaneous deaths, if they resided in the same county and if bothparents died in a common disaster and there is no evidence that theparents died other than simultaneously? YES NO


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OFBOTH CHECKLIST


If the guardian was appointed by will, has the guardianship application been filed:

* in the county in which the will was admitted to probate; or

* in the county where the appointee resides, if the appointee resides inTexas? YES NO

Requisites of a Guardianship Application, Order, and Notice

Has a written and sworn application for guardianship been filed with thecourt? YES NO

Is the sworn guardianship application complete because it states:

(1) the name, sex, date of birth, and address of the proposed ward;

(2) the name, relationship, and address of the person the applicantdesires to have appointed as guardian;

(3) whether guardianship of the person or estate, or both, is sought;

(4) the nature and degree of the alleged incapacity, the specific areas ofprotection and assistance requested, and the limitation or termination ofrights requested to be included in the court’s order of appointment,including a termination of:

(a) the right of a proposed ward who is 18 years or older to vote in a publicelection; and

(b) the proposed ward’s eligibility to hold or obtain a driver’s license;

(5) the facts requiring that a guardian be appointed and the interest ofthe applicant in the appointment;

(6) the nature and description of any guardianship of any kind existingfor the proposed ward in any other state;

(7) the name and address of any person or institution having the careand custody of the proposed ward;


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(8) the approximate value and description of the proposed ward’sproperty, including any compensation, pension, insurance, or allowanceto which the proposed ward may be entitled;

(9) the name and address of any person whom the applicant knows tohold a power of attorney signed by the proposed ward and a descriptionof the type of power of attorney;

(10) if the proposed ward is a minor and if known by the applicant:

(a) the name of each parent of the proposed ward and state the parent’s addressor that the parent is deceased;

(b) the name and age of each sibling, if any, of the proposed ward and state thesibling’s address or that the sibling is deceased; and

(c) if each of the proposed ward’s parents and adult siblings are deceased, thenames and addresses of the proposed ward’s other living relatives who are relatedto the proposed ward within the third degree by consanguinity and who areadults;

(11) if the proposed ward is a minor, whether the minor was the subjectof a legal or conservatorship proceeding within the preceding two-yearperiod and, if so, the court involved, the nature of the proceeding, andthe final disposition, if any, of the proceeding;

(12) if the proposed ward is an adult and if known by the applicant:

(a) the name of the proposed ward’s spouse, if any, and state the spouse’s addressor that the spouse is deceased;

(b) the name of each of the proposed ward’s parents and state the parent’saddress or that the parent is deceased;

(c) the name and age of each of the proposed ward’s siblings, if any, and state thesibling’s address or that the sibling is deceased;

(d) the name and age of each of the proposed ward’s children, if any, and state the child’s address or that the child is deceased; and

(e) if the proposed ward’s spouse and each of the proposed ward’sparents, adult siblings, and adult children are deceased, or, if there is nospouse, parent, adult sibling, or adult child, the names and addresses of


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the proposed ward’s other living relatives who are related to theproposed ward within the third degree by consanguinity and who areadults;

(13) facts showing that the court has venue over the proceeding; and

(14) if applicable, that the person whom the applicant desires to haveappointed as a guardian is a private professional guardian who iscertified under Subchapter C, Chapter 111, Government Code, and hascomplied with the requirements of Estates Code Sec. 1101.001(b)? YES NO

On the filing of an application for guardianship, has the court orderedthe clerk of the court to issue a notice:

* stating that the guardianship application was filed;

* stating the name of the proposed ward;

* stating the name of the applicant(s);

* stating the name of the person to be appointed guardian as provided in the application, if that person is not the applicant; and

* citing all persons who are interested in the welfare of the proposedward to appear at the time and place stated in the notice if they wish tocontest the application? YES NO

Has a copy of the notice been posted? YES NO

Has the sheriff or other officer personally served a copy of the notice, withcitation to appear and answer the application for guardianship, to:

* a proposed ward who is 12 years of age or older;

* the parents of the proposed ward if the whereabouts of the parents are known or can be reasonably ascertained;

* any court-appointed conservator or person having control of the careand welfare of the proposed ward;

* a proposed ward’s spouse if the whereabouts of the spouse are knownor can be reasonably ascertained; and


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Guardianship Hearing Matters

Has the court appointed an attorney ad litem to represent the interests ofthe proposed ward and to advocate on behalf of the proposed ward in theguardianship proceedings? YES NO

Has the State Bar of Texas certified the person appointed attorney ad litemas having successfully completed a course in guardianship law andprocedure sponsored by the State Bar? YES NO

After appointing a qualified attorney ad litem has the court scheduled thehearing on the guardianship application to provide sufficient time for theattorney ad litem to interview the proposed ward within a reasonable timebefore the hearing? YES NO

If necessary to ensure effective communication between the proposed ward and the attorney ad litem, has the court appointed a language or signinterpreter? YES NO

If any person, except a person who has an interest that is adverse to theproposed ward or incapacitated person, has appeared and contested anyguardianship proceeding or the appointment of a particular person asguardian, has the court scheduled a jury trial? YES NO

Has the court noted that it may consider applications and motions withouta hearing, unless:

* the proceeding is an application for the appointment of a guardian;

* the proceeding is contested; or

* the motion or application is superseded by local rules? YES NO

Not later than the 120th day before the date of the hearing on theapplication for guardianship of an incapacitated person other than for aperson whose alleged incapacity is intellectual disability, has the applicantpresented to the court a written letter or certificate from a physicianlicensed in Texas? YES NO

Does the physician’s letter or certificate:

* describe the nature, degree and severity of incapacity, including anyfunctional deficits regarding the proposed ward’s ability to:


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1. handle business and managerial matters;

2. manage financial matters;

3. operate a motor vehicle;

4. make personal decisions regarding residence, voting, and marriage;and

5. consent to medical, dental, psychological, or psychiatric treatment;

* state whether in the physician’s opinion, the proposed ward has themental capacity to vote in a public election and the ability to safelyoperate a motor vehicle;

* provide an evaluation of the proposed ward’s physical condition andmental function and summarize the proposed ward’s medical history ifreasonably available;

* state how and in what manner the proposed ward’s ability to make orcommunicate responsible decisions concerning himself or herself isaffected by his or her physical or mental health;

* state whether any current medication affects the proposed ward’sdemeanor or ability to participate in a court proceeding;

* describe the precise physical and mental conditions underlying adiagnosis of senility, if applicable; and

* include any other information required by the court? YES NO

If the basis of the proposed ward’s alleged incapacity is intellectualdisability, has the proposed ward been examined by a physician orpsychologist licensed in Texas or certified by the Texas Department ofAging and Disability Services to perform the examination, unless there iswritten documentation filed with the court that shows that the proposedward has been examined according to the rules adopted by the TexasDepartment of Aging and Disability Services not earlier than six monthsbefore the date of a hearing to appoint a guardian for the proposed ward? YES NO

At the hearing on the guardianship application, is the proposed wardpresent, unless the court, on the record or in the order, has determined that a personal appearance is not necessary? YES NO


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At the hearing on the guardianship application, is the proceeding open,unless the court has closed the hearing on the request of the proposed ward or the proposed ward’s attorney? YES NO

At the hearing on the guardianship application, has the court:

* inquired into the ability, or sufficient ability with supports and services, of any allegedly incapacitated adult person to feed, clothe, and shelterhimself or herself, to care for his or her own physical health, and tomanage the individual’s property or financial affairs;

* ascertained the age of any proposed ward who is a minor; and

* inquired into the qualifications, abilities, and capabilities of the personseeking to be appointed guardian? YES NO

Findings of the Court, Appointment, and Order of Guardianship

Findings of the Court

Before appointing a guardian, has the court found by clear and convincingevidence that:

* the proposed ward is an incapacitated person;

* the rights of persons or property will be protected by the appointmentof a guardian; and

* the rights of the proposed ward or the proposed ward’s property willbe protected by the appointment of a guardian? YES NO

Before appointing a guardian, has the court found by a preponderance ofthe evidence that:

* that the court has venue;

* that the person to be appointed guardian is eligible to act as guardianand is entitled to appointment, or, if no eligible person is entitled toappointment applies, that the person appointed is a proper person to act as a guardian;

* in the case of a minor, that the guardianship is not created for theprimary purpose of enabling the minor to establish residency for


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH CHECKLISTFindings of the Court, Appointment, and Order of Guardianship

enrollment in a school in which the minor would not otherwise beentitled; and

* the proposed ward is totally without capacity as provided by theEstates Code to care for himself or herself and to manage theindividual’s property, or the proposed ward lacks the capacity to dosome, but not all of the tasks necessary to care for himself or herself ormanage the individual’s property? YES NO

Disqualification of Person to be Appointed

Is the proposed guardian not:

* a minor;

* a person whose conduct is notoriously bad;

* an incapacitated person;

* a person who is a party or whose parent is a party to a lawsuitconcerning or affecting the welfare of the proposed ward, unless thecourt determines that the lawsuit claim of the person who has applied to be appointed guardian is not in conflict with the lawsuit claim of theproposed ward or appoints a guardian ad litem to represent the interestsof the proposed ward throughout the litigation of the ward’s lawsuitclaim;

* a person indebted to the proposed ward (unless the person pays thedebt before the appointment);

* a person asserting a claim adverse to the proposed ward or theproposed ward’s property, real or personal;

* a person who lacks experience or education to manage properly theward’s estate;

* a person, institution, or corporation found unsuitable by the court;

* a person disqualified in a declaration made under Chapter 1104 of theEstates Code;

* a nonresident who has not filed with the court the name of theresident agent to accept service of process in all actions;


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* a person who has not complied with the guardianship certificationrequirements under Estates Code Sec. 1203.052; or

* a person found to have committed family violence who is subject to aprotective order issued under Family Code Chapter 85? YES NO

Order of Guardianship

Does the order of guardianship specify:

* the name of the person appointed guardian;

* the name of the ward;

* whether the guardianship is of the person or the estate, or of both;

* the amount of any bond required;

* specific findings of fact as to whether the proposed ward is totallywithout capacity and needs a guardian with full authority of the personor estate, or both, or whether the person lacks some capacity, but not allcapacity, necessitating the appointment of a guardian of the person orestate, or both, with limited authority;

* the rights, duties, and limitations of the guardian;

* the amount of funds authorized to be expended from the estate’scorpus for the education and maintenance of the ward;

* if it is a guardianship of the estate, and the court deems an appraisal isnecessary, on or more, but not more than three, disinterested persons toappraise the estate and to return the appraisement to the court; and

* that the clerk will issue letters of guardianship to the person appointedwhen that person has qualified according to law? YES NO

Has the court, in its discretion, specified a period of not more than one year during which a petition for adjudication that the incapacitated person nolonger requires the guardianship may not be filed without special leave? YES NO

If the court has found that the proposed ward is totally without capacity tocare for himself or herself and to manage the individual’s property, does the order of guardianship:


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* specify this determination as a finding of fact; and

* appoint a guardian with full authority over the person or estate orboth? YES NO

If the court has found that the proposed ward is partially without capacity,that is, lacks the capacity to do some, but not all, the tasks necessary to carefor himself or herself or to manage the individual’s property, does the order of guardianship:

* reflect the partial incapacity; and

* appoint a guardian with limited authority over the person, the estate or both, therefore allowing the person to care for himself or herself,including with supports and services, or to manage the individual’sproperty commensurate with the person’s ability? YES NO

Court Visitor Program

Does the court operate a court visitor program in accordance with thepopulation needs and financial abilities of the county? YES NO

If so, has any interested person, including a ward or proposed ward, or thecourt on its own motion, at any time before the appointment of a guardianor during the pendency of a guardianship of the person or estate, requestedthat a court visitor evaluate the ward or proposed ward and provide awritten report evaluating the ward or proposed ward? YES NO

Has the court appointed a court visitor, using persons willing to servewithout compensation to the greatest extent possible? YES NO

Has the court visitor filed the written report with the court not later thanthe fourteenth day after the date of the evaluation conducted by the courtvisitor? YES NO

Has the court visitor sworn, under penalty or perjury, to the report’saccuracy to the best of the court visitor’s knowledge and belief? YES NO

Does the court visitor’s written report include:


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* a description of the nature and degree of capacity and incapacity of the ward or proposed ward, including the medical history of the ward orproposed ward, if reasonably available and not waived by the court;

* a medical prognosis and a list of the treating physicians of the ward orproposed ward;

* a description of the ward’s or proposed ward’s living conditions andcircumstances;

* a description of the social, intellectual, physical, and educationalcondition of the ward or proposed ward;

* a statement that the court visitor has personally visited or observed the ward or proposed ward;

* a statement of the date of the most recent visit of the guardian, if onehas been appointed;

* a recommendation as to any modifications needed in the guardianshipor proposed guardianship, including removal or denial of theguardianship; and

* any other information required by the court? YES NO

If the court visitor did not express a willingness to serve withoutcompensation, has the court awarded the court visitor reasonablecompensation for the services rendered in an amount set by the court andtaxed as costs in the proceeding? YES NO

Duties of Court Investigator

On filing of an application for guardianship, has a court investigatorinvestigated the circumstances alleged in the application to determinewhether a less restrictive alternative than guardianship is appropriate.

Has the court investigator:

* supervised the court visitor program established under Chapter 1054of the Estates Code and served as the chief court visitor;

* investigated a complaint received from any person about aguardianship and reported to the judge, if necessary; and


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* performed other duties as assigned by the judge or required by theEstates Code? YES NO

After making an investigation, has the court investigator filed with the court a report of the court investigator’s findings and conclusions? YES NO

If the case is contested, has the court investigator provided copies of thereport to the attorneys for the parties before the earlier of:

* the seventh day after the day the report is completed; or

* the tenth day before the day the trial is scheduled to begin? YES NO

Qualification of Guardian

Time for Taking Oath and Giving Bond

Has the guardian duly qualified as guardian before the expiration of twentydays after the date of the order granting letters of guardianship, or beforethe letters have been revoked because of a failure to qualify within the timeallowed by:

* taking and filing the oath as required under Section 1105.051 of theEstates Code;

* making any required bond;

* filing any required bond with the clerk; and

* having the bond approved by the court? YES NO

Bond Requirement of Guardian of the Person

Has the court waived the bond requirement because:

* the guardian is a corporate fiduciary as defined by Section 1002.006 ofthe Estates Code;

* the guardianship program is operated by a county; or


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Qualification of Guardian

* appointment of a guardian of the person is made in a survivingparent’s will or declaration, the will is probated in Texas, and the willdirects that the guardian of the person serve without bond? YES NO

If bond has not been waived, has the court set the bond for the guardian of the person? YES NO

Bond Requirement of Guardian of the Estate

Has the court waived the bond requirement because the guardian is acorporate fiduciary as defined by Section 1002.006 of the Estates Code, or a guardianship program operated by a county, or because all personal assetsare subject to a safekeeping agreement under Section 1105.155-.156 of theEstates Code? YES NO

If the bond was not waived, before setting the amount of the bond, has thecourt heard evidence and determined:

* the amount of cash on hand and where deposited, and the amount ofcash estimated to be needed for administrative purposes, including theoperation of a business, farm, factory, or ranch operated by theguardianship estate, and administrative expenses for one year;

* the revenue anticipated to be received in the next year (12 months)from dividends, interest, rentals, or use of real or personal property ofthe guardianship estate and the aggregate amount of any installments orperiodic payments to be collected;

* the estimated value of stock, bonds, notes, or securities of the ward,the names of the depository in which these are held for safekeeping, theface value of life insurance or other policies payable to the person forwhom guardianship administration is being sought or the person’sestate, and other personal property owned by the guardianship; and

* the estimated amount of debts due and owing by the ward? YES NO

Has the court set the bond:

* in an amount sufficient to protect the guardianship and its creditors;and


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH CHECKLISTQualification of Guardian

* in an amount equal to the estimated value of all personal propertybelonging to the ward, with an additional amount to cover anticipatedrevenue to be received by the guardianship during the next 12 months? YES NO

Increasing Bond Under Certain Circumstances

Has the court determined that the bond amount should be increasedbecause:

* one of the bond sureties has died, removed beyond the limit of thestate, or has become insolvent;

* the sureties on the bond are insufficient, in the opinion of the court;

* the bond is defective, in the opinion of the court;

* the amount of the bond is insufficient;

* one of the sureties petitions the court to be removed from futureliability on the bond; or

* the bond or the record of the bond has been lost or destroyed? YES NO

The Guardian

Discharge of Person Serving as Guardian

Has the court settled and closed the guardianship;

* as provided by law;

* because the incapacitated person has died;

* because the deceased incapacitated person was married at the time ofdeath, and the spouse qualifies as survivor in community;

* because the court finds the incapacitated person restored to fullcapacity;

* because a minor ward reaches majority; or


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The Guardian

* because an incapacitated person must no longer have a guardianappointed in order to receive funds from any governmental source? YES NO

Need for a Successor Guardian

Is the appointment of a successor guardian appropriate because:

* the former guardian dies;

* the former guardian resigned;

* the former guardian is removed; and

* there is no written application under {Tex. Estates Code Sec.1202.051(a)} pending to restore the ward’s capacity or modifyguardianship (which requires the court to first resolve the pendingwritten application)? YES NO

Has an application for a successor guardian been filed with the court? YES NO

Has notice been accomplished in a manner directed by the court? YES NO

Has the court signed an order appointing a successor guardian? YES NO

Resignation of Guardian

If a guardian of the estate seeks to resign, has the guardian filed with thecourt:

* a written application of resignation; and

* a full and complete exhibit and verified final account showing the truecondition of the guardianship estate? YES NO

If a guardian of the person seeks to resign, has the guardian filed with thecourt:

* a written application of resignation; and

* a verified report setting forth the information required in the annualreport under Chapter 1163 of the Estates Code to show the condition of the ward? YES NO


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH CHECKLISTThe Guardian

Has the court, after hearing, audited and approved the final account or theannual account? YES NO

Has the court signed an order discharging the guardian, and, if the guardian is under bond, discharging the sureties? YES NO

Removal of Guardian

Removal of Guardian Without Notice

Has any interested person, including the ward, or the court on its ownmotion, and without notice to the guardian, moved to remove theappointed guardian? YES NO

Has the court determined that the guardian:

* has neglected to qualify as the guardian in the manner and timerequired by the Estates Code;

* has failed to return within thirty days after qualification, unless thetime is extended by order of the court, an inventory of the property ofthe guardianship estate and list of claims that have come to theguardian’s knowledge;

* having been required to give a new bond, has failed to do so within the time prescribed;

* was absent from the state for a period of three months at one timewithout permission of the court, or moved out of state without thecourt’s permission;

* cannot be served with notices of other processes because theguardian’s whereabouts are unknown, the guardian is eluding service, orthe guardian is a nonresident of Texas who does not have a residentagent to accept service in a guardianship proceeding;

* has misapplied, embezzled, or removed from the state, or is about tomisapply, embezzle, or remove from the state, all or any part of theproperty committed to the guardian’s care;


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OFBOTH CHECKLISTRemoval of Guardian

* has engaged in conduct towards the ward that would be consideredabuse, neglect, or exploitation under Tex. Human Res. Code Sec. 48.002; or

* has neglected to educate or maintain the ward as much as the ward’means and the condition of the ward’ estate permit? YES NO

If the motion to remove the guardian is based upon the guardian’smisapplication, embezzlement, or removal of all or any of the propertycommitted to the guardian’s care, or the anticipated misapplication,embezzlement, or removal of property, or the guardian’s cruel treatment ofa ward, or the guardian’s neglect to educate or maintain the ward, has clearand convincing evidence of the guardian’s conduct been presented to thecourt under oath? YES NO

Has the court signed an order of removal:

* stating the cause of removal;

* ordering the delivery of the estate remaining in the hands of theremoved guardian to be delivered to the person or persons entitled tothe estate or to the person who has been appointed and has qualified assuccessor guardian; and

* ordering the removed guardian to relinquish the control over theward? YES NO

Reinstatement of Guardian Removed Without Notice forEmbezzlement or Cruelty

Has a guardian who was removed for misapplication, embezzlement, orremoval of all or any of the property committed to the guardian’s care, orthe anticipated misapplication, embezzlement, or removal of property, orthe guardian’s cruel treatment of the ward, or the guardian’s neglect toeducate or maintain the ward filed an application with the court for ahearing to determine whether the guardian should be reinstated? YES NO

Has the removed guardian filed the application for hearing not later thanthe tenth day after the court signed the order of removal? YES NO

Has the court scheduled a hearing on the application? YES NO


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH CHECKLISTRemoval of Guardian

Upon the filing of the application, has the court ordered the clerk to issue anotice to the applicant, ward, any person interested in the welfare of theward, the decedent’s estate, of the ward’s estate, and, if applicable, to aperson who has control of the care and custody of the ward stating:

* that the application for reinstatement was filed;

* the name of the ward or decedent; and

* the name of the applicant? YES NO

Does the notice cite all persons interested in the estate or welfare of theward to appear at the time and place stated in the notice if they wish tocontest the application? YES NO

At the hearing on the application, has the court heard evidence regardingwhether the applicant (the removed guardian) engaged in the conduct thatdirectly led to the court’s removal of the applicant? YES NO

At the conclusion of the hearing, if the court is satisfied by a preponderance of the evidence that the applicant (removed guardian) did not engage in theconduct that directly led to the applicant’s removal, has the court:

* set aside the order appointing a successor guardian, if any; and

* signed an order reinstating the applicant as the guardian of the ward or estate? YES NO

Removal of Guardian With Notice

Has any interested person filed a complaint, or the court on its ownmotion, after the guardian has been cited by personal service to answer at atime and place specified in the notice, sought to remove the appointedguardian? YES NO

Has the court scheduled a hearing at which time the guardian can answer? YES NO

Has the court determined that:

* sufficient grounds appear to support a belief that the guardian hasmisapplied, embezzled, or removed from the state, or that the guardian


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is about to misapply, embezzle, or remove from the state, all or any partof the property committed to the care of the guardian;

* the guardian has failed to return any account or report that is requiredby law to be made;

* the guardian has failed to obey any proper order of the court havingjurisdiction with respect to the performance of the guardian’s duties;

* the guardian is proved to have been guilty of gross misconduct ormismanagement in the performance of the duties of the guardian;

* the guardian has become incapacitated, or is sentenced to thepenitentiary, or for any other cause becomes incapable of properlyperforming the duties of the guardian’s trust;

* as guardian of the person, the guardian has cruelly treated the ward, orneglected to educate or maintain the ward as liberally as the means ofthe ward’s estate and the ward’s ability or condition permit;

* the guardian has interfered with the ward’s progress or participation inprograms in the community;

* the guardian has failed to comply with the requirements for theregistration of private professional guardians as set forth in Tex. EstatesCode Chapter 1104;

* the guardian failed to maintain certification as a professional guardianas required by Chapter 1104 of the Estates Code;

* because of the dissolution of joint guardians’ marriage, the termination of the joint appointment and continuation of only one of the jointguardians as sole guardian is in the ward’s best interest; or

* the guardian would be ineligible for appointment as a guardian underthe grounds for disqualification listed in the Estates Code? YES NO

Has the court signed an order of removal:

* stating the cause of removal;

* ordering the delivery of the estate remaining in the hands of theremoved guardian to be delivered to the person or persons entitled to


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the estate or to the person who has been appointed and has qualified assuccessor guardian; and

* ordering the removed guardian to relinquish the control of the ward? YES NO

Court’s Initiation of Guardianship Proceedings

Does the court have probable cause to believe that a person domiciled orfound in the county in which the court is located:

* is an incapacitated; and

* does not have a guardian in this state? YES NO

Based upon the probable cause, has the court appointed a guardian ad litem or a court investigator:

* to investigate; and

* to file an application for the appointment of a guardian of the personor estate, or both, of the person believed to be incapacitated, if thatnecessity exists? YES NO

Has the guardian ad litem or court investigator completed the investigationand filed an application for guardianship? YES NO

Has the court completed the steps in “Requisites of a GuardianshipApplication, Order, and Notice?” YES NO

Has the court completed the steps in “Guardianship Hearing Matters?” YES NO

Has the court completed the steps in “Findings of the Court, Appointment, and Order of Guardianship?” YES NO

Has the court completed the steps in “Qualification of Guardian?” YES NO

To establish probable cause, has the court required:

* an information letter about the person believed to be incapacitated that is submitted by an interested person; or


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* a written letter or certificate from a physician who has examined theproposed ward that satisfies Section 1101.103 of the Estates Code? YES NO

Is the letter submitted by a physician dated no earlier than the 120th daybefore the filing of the application, nor based on an examination thephysician performed no earlier than the 120th day before the filing of theapplication? YES NO

Does the information letter submitted by an interested person about theincapacitated person include:

* the name, address, telephone number, county of residence, and date of birth of the incapacitated person;

* whether the residence of the incapacitated person is a privateresidence, health care facility, or other type of residence;

* the relationship between the interested person and the incapacitatedperson;

* the name and telephone numbers of any known friends or relatives ofthe incapacitated person;

* whether a guardian of the person or estate of the incapacitated personhas been appointed in Texas;

* whether the incapacitated person has executed a power of attorney,and, if so, the designee’s name, address, and telephone number;

* a description of any property of the incapacitated person, including the estimated value of that property;

* a list of any amount and source of monthly income of theincapacitated person; and

* a description of the nature and degree of the person’s allegedincapacity and include a statement of whether the person is in imminentdanger of serious impairment to the person’s physical health, safety, orestate? YES NO


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Annual Report of Guardian of the Person

Has the guardian filed a sworn “Report of the Person” within 60 days ofthe expiration of one year after the appointment of the guardian, andannually thereafter? YES NO

Does the annual report contain the following information:

* the guardian’s current name, address, and phone number;

* the ward’s current name, address, phone number, age, and date ofbirth;

* the type of home in which the ward resides, described as the ward’sown; a nursing home, guardian’s, foster, or boarding home; a relative’shome, and the ward’s relationship to the relative; a hospital or nursingfacility; or other type of residence;

* the length of time the ward has resided in the present home, and ifthere has been a change in the ward’s residence in the past year, thereason for the change;

* the date the guardian most recently saw the ward, and how frequentlythe guardian has seen the ward in the past year;

* a statement indicating whether or not the guardian has possession ofthe ward’s estate;

* the following statements concerning the ward’s health during the pastyear:

- whether the ward’s mental health has improved, deteriorated, or remained unchanged,a description if there has been a change;

- whether the ward’s physical health has improved, deteriorated, or remainedunchanged, and a description if there has been a change;

* a statement as to whether or not the ward has had regular medical care, and the ward’s treatment or evaluation by any of the following personsduring the last year, including the name of that person, and thetreatment involved:

- a physician;


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- a psychiatrist, psychologist, or other mental health care provider;

- a dentist;

- a social or other caseworker;

- another individual who provided treatment;

* a description of the ward’s activities during the previous year, including recreational, educational, social, and occupational activities, or if noactivities are available or if the ward is unable or refused to participate, astatement to that effect;

* the guardian’s evaluation of the ward’s living arrangements asexcellent, average, or below average, including an explanation if theconditions are below average;

* the guardian’s evaluation of whether the ward is content or unhappywith the ward’s living arrangements;

* the guardian’s evaluation of unmet needs of the ward;

* a statement of whether or not the guardian’s power should beincreased, decreased, or unchanged, including an explanation if a changeis recommended;

* a statement indicating that the guardian has paid the bond premiumfor the next reporting period; and

* any additional information the guardian desires to share with the courtregarding the ward? YES NO

Duties of Guardian of the Estate

Inventory, Appraisement, and List of Claims

Has the guardian of the estate, within 90 days of the granting of letter ofguardianship, filed a verified and proper inventory, appraisement, and list of claims of the ward’s estate as of the date of the guardian’s qualification inaccordance with Sections 1154.051-.052 of the Estates Code? YES NO


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PERMANENT GUARDIANSHIP OF PERSON OR ESTATE OF BOTH CHECKLISTDuties of Guardian of the Estate

Sale of Real Property

Has the guardian applied to the court for an order to sell real property ofthe estate because it is necessary or advisable to pay expenses of theadministration, allowances, and claims against the ward or ward’s estate, orbecause it is in the best interest of the estate to sell the property inaccordance with Section 1158.251 of the Estates Code? YES NO

Has the appointment of appraisers been waived? YES NO

Has the court approved the inventory, appraisement, and list of claims, andissued an order to that effect? YES NO

Has the guardian filed an application to sell real estate and a verified exhibit showing:

* the condition of the estate;

* the charges and claims that have been approved or established by suit,or that have been rejected and may be established later;

* the amount of each claim that has been approved or established bysuit, or that has been rejected but may be established later;

* the property of the estate remaining on hand liable for the payment ofthose claims; and

* any other facts that show the necessity or advisability of the sale? YES NO

If the court has scheduled a hearing on the application, has citation byposting been completed? YES NO

If the guardian has filed an application, has the court scheduled a hearingon the application for no sooner than the first Monday after ten days fromthe date of posting? YES NO

If the court, upon hearing, is satisfied that the sale is necessary andadvisable, has the court signed an order authorizing the sale specifyingthose matters set forth in Section 1158.256 of the Estates Code? YES NO

Has the guardian filed with the court, within 30 days after the sale, a properreport describing the sale transaction? YES NO


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After the guardian’s report of sale has been on file with the clerk for fivedays, has the court determined whether the sale was proper, and, if so,approved the sale in a decree confirming the sale? YES NO

Sale of Personal Property

Has the guardian applied to the court for an order to sell personal propertyof the estate because it is necessary or advisable to pay expenses of theadministration, allowances, and claims against the ward or the ward’s estate, or because it is in the best interest of the estate to sell the property? YES NO

Has the guardian filed an application to sell personal property and a verified exhibit showing:

* the condition of the estate;

* the charges and claims that have been approved or established by suit,or that have been rejected and may be established later;

* the amount of each claim that has been approved or established bysuit, or that has been rejected but may be established later;

* the property of the estate remaining on hand liable for the payment ofthose claims; and

* any other facts that show the necessity or advisability of the sale? YES NO

If the court has scheduled a hearing on the application, has citation byposting been completed? YES NO

If the guardian has filed an application, has the court scheduled a hearingon the application for no sooner than the first Monday after 10 days fromthe date of posting? YES NO

If the court, upon hearing, is satisfied that the sale is necessary andadvisable, has the court signed an order authorizing the sale specifyingthose matters set forth in Section 1158.256 of the Estates Code? YES NO

Has the guardian filed with the court, within 30 days after the sale, a properreport describing the sale transaction? YES NO


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After the guardian’s report of sale has been on file with the clerk for fivedays, has the court determined whether the sale was proper, and, if so,approved the sale in a decree confirming the sale? YES NO

Sale of Personal Property Likely to Perish, Waste, Etc.

Has the guardian filed an application to sell personal property that is likelyto perish, waste, or deteriorate in value, or that will be an expense ofdisadvantage to the estate if kept? YES NO

If the court desires a hearing on the application, has the court scheduled ahearing? YES NO

In determining whether to grant the application, has the court considered:

* the guardian’s duty to care for and manage the estate as a person ofordinary prudence, discretion, and intelligence; and

* whether the asset is an asset that the trustee is authorized to investunder Section 3113.056 of the Estates Code or Subchapter F of theProperty Code? YES NO

If the court is satisfied that the sale is necessary and proper, has the courtsigned an order authorizing the sale? YES NO

Notice to Creditors

Has the guardian served notice on creditor in accordance with Chapter1153 of the Estates Code? YES NO

Have the creditors filed their claims in proper form with the clerk of thecourt? YES NO

Annual Account

Has the guardian filed a sworn accounting within sixty days of theexpiration of one year after the appointment of the guardian, and annuallythereafter? YES NO

Is the annual account in the form specified by Chapter 1163 of the EstatesCode? YES NO


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After the annual accounting has been on file with the clerk of the court forten days, has the court considered the annual account and held a hearing todetermine its accuracy? YES NO

If the account is found to be inaccurate, have the necessary correctionsbeen made? YES NO

If the account is accurate, has the court approved the account? YES NO

When a Guardianship of the Estate Should be Closed

Is the guardianship of the estate closed and settled because:

* a minor ward dies;

* a minor ward becomes 18;

* a minor ward marries;

* a minor ward has the disabilities of minority removed by the laws ofthis state;

* an incapacitated person dies;

* an incapacitated person is decreed by law to have been restored to fulllegal capacity;

* the spouse of a married ward has qualified as survivor in communityand the ward owns no separate property;

* the estate of a ward becomes exhausted;

* the foreseeable income accruing to a ward or to the ward’s estate is sonegligible that maintaining the guardianship would be burdensome;

* all of the estate assets have been placed in management trust, and thecourt determines that a guardianship for the ward is no longer necessary; or

* the court determines for any other reason that a guardianship is nolonger necessary? YES NO


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Final Accounting of the Guardian or an Estate and Closing of theGuardianship of the Estate

Has the guardian of the estate presented to the court the guardian’s verified account for settlement? YES NO

Are the vouchers in support of each item not already accounted forattached to the verified final account? YES NO

Does the verified final account show:

* the property, rents, revenues, and profits received by the guardian, and belonging to the ward, during the term of guardianship;

* the disposition made of the property, rents, revenues, and profits;

* the expenses and debts against the estate that remain unpaid, if any;

* the property of the estate that remains in the hands of the guardian, ifany;

* that the guardian has paid all required bond premiums;

* the tax returns the guardian has filed during the guardianship;

* the amount of taxes the ward owed during the guardianship that theguardian has paid;

* a complete account of the taxes the guardian has paid during theguardianship, including the amount of taxes, the date the guardian paidthe taxes, and the name of the governmental entity to which theguardian paid the taxes;

* a description of all current delinquencies in the filing of tax returns and the payment of taxes and a reason for each delinquency; and

* other facts as appear necessary to a full and definite understanding ofthe exact condition of the guardianship? YES NO

Has the notice of the filing of the verified account for settlement beengiven in the manner set forth in Section 1204.105 of the Estates Code? YES NO


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After citation has been properly served, has the court examined the verified final account for settlement and the vouchers accompanying the account? YES NO

Has the court heard all exceptions or objections to the account andevidence in support of or against the account? YES NO

After hearing, has the court audited and settled the account, and restated it,if necessary? YES NO

Has the court signed an order approving the final account? YES NO

On the final settlement of the estate, if there is any part of the estateremaining in the hands of the guardian, has the court ordered that it bedelivered:

* in the case of a ward, to the ward; or

* in the case of a deceased ward, to the personal representative of thedeceased ward’s estate if one has been appointed, or to any other person legally entitled to the estate? YES NO

After the guardian has properly delivered the property remaining in his orher hands at the time of the final settlement, has the court entered an orderdischarging the guardian and closing the estate? YES NO

On final settlement of the estate, if there is no part of the estate remainingin the hands of the guardian, has the court entered an order discharging theguardian and closing the estate? YES NO

Termination of Guardianship of the Person

Is the guardianship of the incapacitated person closed and settled because:

* a minor ward dies;

* a minor ward reaches majority by attaining his or her 18th birthday;

* a minor ward marries;

* a minor ward has the disabilities of minority removed by the law of the state;

* an incapacitated person dies;


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* an incapacitated person is decreed by law to have been restored to fulllegal capacity;

* the spouse of a married person has qualified as survivor in communityand the ward owns no separate property;

* the estate of the ward becomes exhausted;

* the foreseeable income accruing to a ward or to the ward’s estate is sonegligible that maintaining the guardianship would be burdensome;

* all or some of the estate assets have been placed in a managementtrust, and the court determines that a guardianship for the ward is nolonger necessary; or

* the court determines for any other reason that a guardianship is nolonger necessary? YES NO

Has the guardian of the person delivered all property of the ward in thepossession or control of the guardian to the emancipated ward or otherperson entitled to the property? YES NO

If the ward is deceased, has the guardian of the person delivered theproperty to the personal representative of the deceased ward’s estate orother person entitled to the property? YES NO

If there is no property of the ward in the possession or control of theguardian of the person, has the guardian filed with the court a swornaffidavit that states the reason the guardianship was terminated and towhom the property of the ward in the guardian’s possession was delivered? YES NO

Has the guardian filed a final report? YES NO

Has a motion to close the guardianship of the person been filed? YES NO

Has the court signed an order discharging the guardian? YES NO


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SPECIAL PROCEEDINGS CHECKLIST

Special Proceedings

Incapacitated Spouse and Community Property

Has a spouse been judicially declared to be incapacitated? YES NO

Does the incapacitated spouse possess separate property? YES NO

Has a guardianship of the estate been created to manage the separateproperty only? YES NO

Receivership for Minors and Incapacitated Persons

Does the estate of a minor or other incapacitated person appear in dangerof injury, loss, or waste? YES NO

Is there a need for a guardianship or other representative, but no qualifiedperson is present? YES NO

Has the county judge of the county in which the minor or otherincapacitated person resides or in which the endangered estate is locatedentered an order, with or without application, appointing a suitable personas receiver to take charge of the estate? YES NO

Has the receiver given bond as required in ordinary receiverships in anamount that the judge deems necessary to protect the estate? YES NO

If the receiver invests, lends, or contributes excess money, has the receiverreported to the court any transactions made on behalf of the estate? YES NO

Has the receiver filed a monthly sworn account of all necessary expenses of the estate, acts of the receiver, estate condition, status of the threateneddanger to the estate, and progress toward abatement of the danger? YES NO

If the receiver’s sworn statement is found by the court to be correct andreasonable, has the court entered an order approving the expenses andauthorizing the receiver to be reimbursed from the estate’s funds? YES NO


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SPECIAL PROCEEDINGS CHECKLISTSpecial Proceedings

In closing the receivership, because the threatened danger has abated andthe estate is no longer liable to injury, loss, or waste because there is noguardian or other representative of the estate, has the receiver filed a swornfinal account of all property of the estate the receiver received, had on hand when the receivership was pending, all sums paid out, all acts performed bythe receiver with respect to the estate, and all property that remains in thereceiver’s hands on the date of the report? YES NO

On the filing of the report, has the court ordered the clerk to issue and tocause to be posted a notice to all persons interested in the welfare of theminor or other incapacitated person, and to give personal notice to theperson who has custody of the minor or other incapacitated person, toappear before the judge at a time and place specified in the notice andcontest the report and account if the person desires? YES NO

Did the court enter an order discharging the receiver and sureties if thecourt is satisfied that the danger of injury, loss, or waste to the estate hasabated, and that the report and account are correct? YES NO

If the court is not satisfied that the danger is abated or that the report andaccount is correct, has the court entered an order that continues thereceivership until the court is satisfied that the danger has abated or thereport and account are correct? YES NO

Payment of Claims Without Guardianship

Is there no guardian of the estate for a resident minor or otherincapacitated person, or a former ward whose guardianship of the estate has been terminated, due to exhausted estate funds? YES NO

Is the resident minor or other incapacitated person entitled to a liquidatedsum of $50,000 or less from a debtor? YES NO

Has the debtor paid the amount due into the registry of the county court of the county in which the minor or incapacitated person resides for the useand benefit of and to the account of the minor or incapacitated person? YES NO

Is there a mother, father, spouse not estranged, or person with actualcustody of the minor or incapacitated person to act as custodian of theminor or incapacitated person? YES NO

Has the court reviewed Chapter 1355 of the Estates Code dealing with theorder of priority for persons who can become the custodian? YES NO


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Has the custodian filed with the clerk a written application to withdrawmoney from the clerk for the use and benefit of the minor or incapacitatedperson and approved bond? YES NO

Has the court approved the bond because it:

* is in an amount that is double the amount of money in the registry;

* is payable to the judge or the judge’s successors in office;

* is conditioned on the promise that the custodian will use the moneyfor the minor’s or incapacitated person’s benefit under the directions ofthe court; and

* specifies that the custodian will account for the funds to the minor orincapacitated person, or his or her heirs or legal representatives, if calledon to do so? YES NO

Sale of Property of Minors Without Guardianship

Does the minor’s interest in real or personal estate property not exceed$50,000? YES NO

Has the natural or adoptive parent of the minor, who is not a ward, filed asworn application with the court for an order to sell the real or personalestate property without the necessity of a guardianship being established? YES NO

Does the sworn application contain the following:

* a legal description of the real property and a description that identifiesthe personal property;

* the name of the minor and the minor’s interest in the property;

* the name of the purchaser;

* a statement that the sale of the minor’s interest in the property is forcash; and

* a statement that all funds received by the parent will be for the use and benefit of the minor? YES NO


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Has the court scheduled the hearing on the application for a day not earlierthan five days from the filing date of the application? YES NO

Has the court determined, in it discretion, whether the cause citation to beissued? YES NO

Is the court satisfied from the evidence presented at the hearing that thesale is in the best interest of the ward? YES NO

Has the court determined, in it discretion, whether to require independentappraisal of the property to be sold to establish the minimum sale price? YES NO

Has the court ordered the sale of the property? YES NO

Did the purchaser of the property pay the proceeds into the registry of thecourt? YES NO

08-06-2017 08-13-43 AM pass1 B_GUARDIANSHIP_CHECKLIST_2017


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Documents

Contents - Guardianship · contents - guardianship i. scope of summary ... xiii. special guardianships ... special proceedings checklist