Ellen Daniel Williamson Attorney and President, Ellen Williamson Law, PC
ISSUE 6 | FALL 2019 | PROBATE & ESTATE PLANNING |
Guardianships can be granted by a court when an individual requires assistance handling their personal or financial affairs. This complicated and important process is explained below by Ellen Daniel Williamson. She has more than fifteen years of experience as an attorney, and has practiced probate, estate planning, and guardianship law since 2013. Currently, she has a solo practice at Ellen Williamson Law, PC and serves as Of Counsel at Farrow-Gillespie Heath Witter LLP. She was selected as one of “DVAP’s Finest” for her pro bono volunteer efforts through the Dallas Volunteer Attorney Program, she is a member of the Dallas Bar Association Probate, Trusts, & Estates section, a member of the estates manual committee, and a former co-chair of DAYL Elder Law Committee.
What is a guardian? A guardian is a person appointed by a court to manage the person, estate, or both, of an incapacitated person, called a ward.¹
What are the different types of guardianship? A person may need a guardian of the person, a guardian of the estate, or both. Guardianship may be either permanent or temporary.
A guardian of the person is someone who makes medical, educational, residential, employment, marriage, and similar decisions for a ward. A guardian of the estate is someone who manages property on behalf of a ward. The general powers and duties of a guardian of the person are outlined in Chapter 1151 of the Texas Estates Code. (available here).
A ward may need a guardian of the person, a guardian of the estate, or both, depending on the circumstances. For example, a young adult with an intellectual disability whose parents seek to become her guardian as she reaches adulthood may not have an estate to manage. However, a senior with dementia or an adult who suffers a traumatic brain injury may need assistance with both personal and financial decisions.
Permanent guardianship may be granted when the need is expected to continue indefinitely. If there is both immediate and ongoing need, the court may grant a temporary guardianship pending a hearing on the permanent application. Temporary guardianship may be granted when a court finds that there is: (1) a substantial likelihood that the proposed ward is incapacitated; and (2) probable cause to believe that there is imminent danger to the proposed ward's physical health, safety, and estate.² Temporary guardianships are initially granted for 60 days but may be extended.³
Temporary guardianships are similar to permanent guardianships in many respects. One key difference is that the Estates Code identifies the full powers granted to a permanent guardian of the person or estate, but does not grant any default temporary guardian powers. For that matter, the Estates Code does not refer to a "temporary guardian of the person" or "temporary guardian of the estate," but only a “temporary guardian.” Particular care must be taken in drafting the application for temporary guardianship and the proposed order appointing the temporary guardian to ensure that the relief requested is appropriate to the need.⁴
Another key difference is that due to the time-sensitive nature of the need, the burden of proof is lower for temporary guardianship. Accordingly, this means that a person for whom a temporary guardian is appointed is not necessarily presumed to be incapacitated.⁵
When is guardianship needed? Guardianship is the most restrictive legal status short of incarceration. A person under guardianship is stripped of his right to make his own decisions and manage his own estate. Before a court can appoint a guardian, it must find that the person is incapacitated and the proposed guardian suitable, but also that there are no other alternatives.⁶ In other words, the court must find, by clear and convincing evidence, that the person is incapacitated and that only guardianship can meet the person’s needs and protect his interests.⁷
A partially incapacitated person may need assistance with some tasks while retaining the ability to do others. Consistent with the goal of restricting a person’s rights only to the extent necessary to protect him, the Court may create a limited guardianship in which the ward retains some rights, and the guardian is granted only limited powers.⁸
Before considering guardianship, it is important to determine whether a less restrictive alternative may be available. For example, if the person has previously executed powers of attorney or has capacity to do so, guardianship may be avoided. If the allegedly incapacitated person is married and has no separate property, the spouse may act as community administrator of the entire community estate as a less restrictive alternative to the more costly and difficult guardianship of the estate. If the alleged incapacitated person is a young adult with no property except Supplemental Security Income (“SSI”), the person who serves as guardian of the person may also apply to be the representative payee for SSI. Such alternatives can save money and time and, more importantly, allow the incapacitated person to retain as many rights as possible.
Who represents the proposed ward in a guardianship? The court appoints an attorney ad litem to represent the legal interests of the proposed ward.⁹ Such representation may include contesting the application on the merits, challenging the allegation of incapacity, or arguing that someone other than the proposed guardian is a more appropriate person to serve. However, even when there is no genuine dispute of the medical evidence or the proposed guardian’s suitability to serve, the attorney ad litem should continue to investigate and evaluate the availability of less restrictive alternatives.
The attorney ad litem role is similar to that of a public defender in a criminal case. Just as a criminal defense attorney should not confess judgment on their client’s behalf by saying that their client is guilty, an attorney ad litem should not admit their client’s incapacity.
Who can represent an applicant or serve as attorney ad litem for a proposed ward in a guardianship matter?
The applicant’s attorney and attorney ad litem for the proposed ward must be certified by the State Bar of Texas to participate in a guardianship proceeding.¹⁰ An attorney is initially certified for two years, and after being certified for two consecutive two-year terms, is then recertified for four years. To earn such certification, the attorney must complete a four-hour course about guardianship law and procedure sponsored by the State Bar of Texas. One hour of this course focuses on alternatives to guardianship and supports and services available to proposed wards.
Who might need a guardian? There are three broad categories of people who may need a legal guardian:
A minor;
A person who must have a guardian to receive money from a governmental source; or
An adult who, because of physical or mental condition, is substantially unable to provide for their basic needs of food, clothing, and shelter, care for their physical health, or manage their finances.¹¹
The majority of guardianship proceedings involve the third category, adults who, because of incapacity, are unable to care for themselves or manage their property. More specifically, adult persons under guardianship generally fall into one of these three groups:
1. People with an intellectual disability or other special needs Members of this group typically have never had, or may not be expected to ever have, capacity. During their childhood, their parents, as their natural guardians, were able to make decisions for them. If they still require assistance once they reach adulthood, one or more parents are often the guardians. Because such wards often have no property and no income other than Supplemental Security Income (SSI), there may be no estate to manage. Such guardianships may be created as soon as the ward turns 18, and the application for guardianship may be filed up to 6 months before the proposed ward's 18th birthday. However, guardianship cannot take effect until the ward reaches adulthood.
2. People who have suffered a traumatic brain injury Members of this group have reached adulthood and may have had full capacity until a traumatic brain injury left them unable to care for themselves or their property. Some members of this group may have the possibility of recovering partial or full capacity in the future.
3. People with aging brain issues Members of this group include seniors with dementia and similar conditions in which memory and cognitive function decline, leaving the person increasingly unable to manage his care or property. Due to the progressive nature of such degenerative conditions, guardianships created for wards with aging brain issues are generally permanent without expectation of restoration.
A significant difference between the first group and the latter two groups is that members of the latter groups had capacity before their incapacity arose. Thus, they may have signed powers of attorney or otherwise planned for future incapacity such that guardianship may not be necessary or may be limited in scope. However, these last two groups are also much more likely to have an estate to manage. This estate may need to be preserved and invested or, alternatively, spent down in a managed way to enable the ward to qualify for Medicaid. In other words, persons who do not become incapacitated until later in life may be less likely to need a guardian once incapacity arises. But if guardianship is needed, it is typically a more complicated and expensive process than a guardianship for a person who has never had capacity.
What is the process of applying for guardianship? The process for applying for a permanent guardianship in Dallas County is as follows:
The applicant files an application for appointment of permanent guardianship with the certificate of medical examination (“CME”) as a separate document. The CME contains sensitive details about the proposed ward and is not available on the public court records website.¹²
A file-stamped copy of the application must be personally served on the proposed ward and served by certified mail on certain other family members. If applicable, the administrator of the facility where the ward resides must also be served by certified mail.¹³ Further, the applicant must file a certificate confirming that all interested parties were properly noticed.¹⁴
The applicant must post a $400 deposit with the Clerk for the attorney ad litem’s fee, unless an affidavit of inability to pay costs is on file.
The proposed guardian(s) (usually the applicant(s)) must register with the Texas Judicial Branch Certification Commission (“JBCC”) to undergo a criminal background check and complete an online training module.¹⁵
The JBCC forwards the background check results to the court in which the guardianship application is pending. The results must be on file at least 10 days before the hearing on the application can take place.
The proposed guardian must also file the certificate of completion of the training module with the court.
The court appoints a Court Investigator who meets with the proposed ward and applicant, then prepares and files a report.¹⁶ The Court Investigator acts as the eyes and ears of the court.
The court appoints an attorney ad litem to represent the proposed ward's legal interests.
The attorney ad litem investigates, interviews the proposed ward, and files an answer on behalf of the proposed ward.¹⁷
If appropriate, the attorney ad litem may make a Motion for Appointment of a Guardian Ad Litem to speak to the proposed ward's best interests, which may not coincide with the proposed ward's legal interests.¹⁸
The court holds a hearing on the guardianship application.
If the application is granted, the Judge signs an order appointing the guardian.¹⁹
Upon appointment, the guardian takes an oath and posts a bond. Bond for guardians of the person is typically $100. Bonds for guardians of the estate must be corporate surety bonds with the amount based on the estate size.²⁰
Upon qualification, the guardian may then receive Letters of Guardianship (i.e., their “badge”) to show that they have the authority to act on the ward's behalf.²¹
What does a permanent guardian need to do once appointed? The role of the guardian of the person includes taking possession of, caring for, supervising, and protecting the ward.²² This includes making medical decisions, choosing an appropriate residence, and making decisions about employment, education, and marriage. The guardian of the person is not required to be represented by an attorney after the hearing.²³
The role of the guardian of the estate, on the other hand, is significantly more involved. In fact, the guardian must be represented by an attorney for the duration of the guardianship. The guardian of the estate immediately takes possession of the ward’s property and records.²⁴ The guardian must file an inventory listing all the ward’s property within 30 days after qualification²⁵and, as appropriate, apply for a monthly allowance²⁶ and file an investment plan.²⁷ The guardian must notify the Internal Revenue Service (IRS) of the fiduciary relationship and give appropriate notices to creditors.²⁸ Guardianship is inherently a dependent administration—that is, like a game of “Mother may I?”, the guardian must obtain Court permission for nearly all acts, such as expending the ward’s funds, accepting creditor claims, and selling or leasing estate property.²⁹
Letters of Guardianship expire annually. To renew them, a guardian of the person must file an annual report updating the Court on the ward’s condition.³⁰
The guardian of the estate must file an annual account detailing all receipts, expenditures, transfers between accounts, and changes in the value of the property.³¹ The surety bond must also be renewed.
Once the annual report or account has been approved, the court signs an Order approving such filing and authorizing the Clerk to issue new Letters of Guardianship.
How can a guardianship be modified? The ward or any interested person may petition the court for an order to modify the guardianship to either expand or limit the guardian’s powers.³² If the guardian was initially granted only limited powers, and the ward’s condition declines, the court may grant additional powers. On the other hand, if the ward regains abilities, the court may partially or fully restore the ward’s rights. When restoration of rights is sought because the ward is believed to have regained full or partial capacity, a physician's certificate of medical examination specific to restoration cases is required.³³ If the guardian dies or resigns, the court will appoint a successor.³⁴ Guardians can also be removed for failure to file an annual report or account or otherwise failing to remain in compliance with requirements. ³⁵
How and when is a guardianship terminated? Permanent guardianships are terminated once the guardianship is no longer needed, such as if the ward dies or regains capacity. A guardianship of the estate may also be terminated if the estate is exhausted or the ward’s only remaining assets are being managed by other means. When a guardianship of the person is terminated, the guardian files a final report.³⁶ When a guardianship of the estate is terminated, the guardian files a final account.³⁷ Upon Court approval of the final account and delivery of the ward's estate, if any, to the person entitled to such possession, the Court discharges the guardian and releases the guardian's surety from its bond.³⁸
Sources: ¹ Tex. Est. Code Ann. § 1002.012. ² Tex. Est. Code Ann. § 1251.001. ³ Tex. Est. Code Ann. § 1251.151. ⁴ Tex. Est. Code Ann. § 1251.010. ⁵ Tex. Est. Code Ann. § 1251.002. ⁶ Tex. Est. Code Ann. § 1002.0015; Tex. Est. Code Ann. § 1002.031. ⁷ Tex. Est. Code Ann. § 1101.101. ⁸ Tex. Est. Code Ann. § 1101.152. ⁹ Tex. Est. Code Ann. § 1054.001-004. ¹⁰ Tex. Est. Code Ann. § 1054.201. ¹¹ Tex. Est. Code Ann. § 1002.017. ¹² Tex. Est. Code Ann. § 1101.001; Tex. Est. Code Ann. § 1101.103. ¹³ Tex. Est. Code Ann. § 1051.101-203. ¹⁴ Tex. Est. Code Ann. § 1051.104(b) ¹⁵ Tex. Govt. Code § 155.151; Tex. Est. Code Ann. § 1104.404; Tex. Est. Code Ann. § 1104.003 ¹⁶ Tex. Est. Code Ann. § 1054.151-153. ¹⁷ Tex. Est. Code Ann. § 1054.004. ¹⁸ Tex. Est. Code Ann. § 1054.151; Tex. Est. Code Ann. § 1054.154. ¹⁹ Tex. Est. Code Ann. § 1151.151-152. ²⁰ Tex. Est. Code Ann. § 1105.001-002. ²¹ Tex. Est. Code Ann. § 1106.001. ²² Tex. Est. Code Ann. § 1151.051-056. ²³ Tex. Est. Code Ann. § 1163.105. ²⁴ Tex. Est. Code Ann. § 1151.101-152. ²⁵ Tex. Est. Code Ann. § 1154.051-053. ²⁶ Tex. Est. Code Ann. § 1156.051. ²⁷ Tex. Est. Code Ann. § 1161.051. ²⁸ Tex. Est. Code Ann. § 1153.001-005. ²⁹ Tex. Est. Code Ann. § 1151.102-1151.103, Tex. Est. Code Ann. § 1158. ³⁰ Tex. Est. Code Ann. § 1163.101-1163.102. ³¹ Tex. Est. Code Ann. § 1163.001-002; Tex. Est. Code Ann. § 1163.051. ³² Tex. Est. Code Ann. § 1202. ³³ Tex. Est. Code Ann. § 1202.152. ³⁴ Tex. Est. Code Ann. § 1203.102. ³⁵ Tex. Est. Code Ann. § 1203. ³⁶ Tex. Est. Code Ann. § 1163.103. ³⁷ Tex. Est. Code Ann. § 1204.101. ³⁸ Tex. Est. Code Ann. § 1204.152.
