Probate & Wills: 214.273.6919
9400 N. Central Expy., Ste. 1630
Dallas, Texas 75231
Because of mental disabilities such as dementia, Alzheimer's Disease, stroke or a developmental disability, an adult may not be able to take care of his or her own finances, make medical decisions, or accomplish his or her activities of daily living. Guardianship is the legal process by which a court determines that an adult is unable to make decisions about some or all areas of life and is therefore legally incapacitated. As a result of that determination, the Court can appoint a Guardian to make those decisions for that adult.
An "incapacitated" person is defined as 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 own physical health, or to manage the individual’s own financial affairs. The mere ability to state a preference does not constitute mental capacity. If a person is substantially unable to exercise a right acting on their own, or with some basic supports and services, that person is deemed to be unable to exercise that right.
If the matter is uncontested, obtaining a Guardianship over your incapacitated loved-one can be a simple process. Guardianship can be a very complex process, however, if the matter becomes contested. Either way, by following the steps below, you can enable The Duran Firm to get a quick start on the process.
Step 1. Obtain a Physician's Certificate of Medical Examination detailing the nature of the proposed ward’s incapacity
Because Guardianships are reserved for incapacitated persons, the person filing the Application for Guardianship (the “Applicant”) must provide evidence to the court that the proposed ward is indeed incapacitated. The primary method of proof is the submission of a certificate from the proposed ward’s doctor. The Physician's Certificate of Medical Examination must be based on the doctor's findings during a recent examination of the proposed ward (within 120 days of filing for guardianship). Among other things, the doctor’s letter states the nature and degree of the proposed ward’s alleged incapacity and the specific areas of protection and assistance required. Below is a blank Physician's Certificate of Medical Examination approved for use by the Probate Courts. Please download the Certificate by clicking on the link below:
The Physician's Certificate of Medical Examination is a downloadable Adobe® PDF file. If you are having trouble downloading the file, you may have to install the Adobe Reader
Step 2. Complete the Guardianship Prospective Client Information Worksheet
The proceeding seeking the appointment of a Guardian begins with the filing of a written Application for Guardianship in the county court having jurisdiction over the matter.
Who can file an Application for Guardianship? Any person, other than a person with an interest adverse to the proposed ward, has the right to commence a Guardianship proceeding.
When can the Application be filed? The Application can be filed no earlier than the 180th day before the proposed ward's 18th birthday.
How much does it cost to file an Application for Guardianship? Fees vary by county. For example, the Dallas County Probate Court charges $261 to file an Application for Guardianship. The Court also collects a deposit of $400 for the payment of the ward's attorney ad litem. Finally, the Dallas County Probate Court collects a cash bond from the Proposed Guardians in the amount of $100. If the ward has an estate, the court can order that the Applicant be reimbursed out of the ward's estate for all costs and fees paid by the Applicant. Furthermore, if both the applicant and the ward do not have the assets to pay the fee, the court can order that the court costs and ad litem fees be paid by the county. The Applicant must still pay his or her own attorney and must pay the $100 bond.
What kind of information is included in the Application> The Application must meet certain requirements as set out in the Texas Estates Code. For example, the Application must state relevant facts about the proposed ward and the nature and degree of the proposed ward's alleged incapacity. Because Guardianship is such an important matter, the Texas Estates Code requires that the proposed ward and his or her immediate family all receive notice of the Application. Therefore, the proposed ward's familial relationships must also be set out in the Application.
In order to start work on the Application, I need some basic information about you (the "Applicant";) and the proposed ward. Please download the Guardianship Prospective Client Information Worksheet by clicking on the link below:
BE SURE TO SAVE AND PRINT YOUR WORKSHEET
BEFORE ATTEMPTING TO SEND IT TO THE DURAN FIRM.
Step 3. Complete the Application for Bond (sometimes)
In order to qualify the Applicant as Guardian, the Applicant must post a bond. If the ward has less than $5,000 in assets, the court will usually only require a nominal bond. In Dallas County, a Guardian of the Person need only post a $100.00 cash bond. Many of the surrounding counties will allow guardians to post a personal surety bond which is a written promise to pay the Court if the Guardian fails to properly perform his or her duties. If the proposed ward does not have significant assets, the bond amount is usually minimal ($500.00 or less)
If the proposed ward has significant amount of assets, a "Guardianship of the Estate" will also be required. In establishing a Guardianship of the Estate, the judge will require the Guardian post a corporate surety bond from a bonding company in an amount equal to the value of the assets in the estate (not including real estate). A corporate surety bond is obtained from an insurance company. The first thing the bond company will do before issuing the bond is to check the Applicant's credit. Thus, before attempting to obtain a Guardianship of the Estate, it is a good idea to pre-qualify the Applicant with a bonding company to ensure that the Applicant will be able to post the required bond. Please call The Duran Firm for a copy of the bond application.
Step 4. Return the Documents to the Duran Firm
Send a copy of the Physician's Certificate of Medical Examination, Guardianship Prospective Client Information Worksheet, and the Bond Application (if necessary) to The Duran Firm. An attorney with the Firm will review the documents, determine whether a guardianship is appropriate in your case, and call you to discuss the case.
Once the Application for Guardianship is filed, the Court will take the following steps:
Step 5. Serve a "Personal Citation" and a copy of the Application for Guardianship upon the proposed ward
Once the Application is filed, the appropriate notice requirements must be satisfied. For example, the proposed ward must be personally served with a copy of the Application. This is usually done by the County Constable or Sheriff. The Applicant must also send a copy of the Application to the members of the proposed ward's immediate family (spouse, children, parents, and siblings), unless they waive service. Finally, if the proposed ward lives in an facility, the administrator must also receive a copy of the Application by certified mail.
Step 6. Assign a Court Investigator to visit the proposed ward and file a Court Investigator Report
Whenever an Application for Guardianship is filed, a Court Investigator must investigate the circumstances alleged in the Application to determine whether an alternative that is less restrictive than Guardianship might be appropriate. The Court Investigator will visit the proposed ward at his or her home and interview the Applicant. The Court Investigator will also conduct a background check with DPS, APS, and CPS to see if the Applicant is a suitable person to serve a guardian. Upon completing the investigation, the Court Investigator will file a report of his or her findings with the court.
Step 7. Appoint an attorney ad litem to represent the interests of the proposed ward
Once the probate court receives the court investigator's report, the court will appoint an attorney ad litem to represent the interests of the proposed ward. The attorney ad litem will meet with the proposed ward and attempt to inform the proposed ward about the Application for Guardianship and advise the proposed ward of his or her legal options. The attorney ad litem will also ask to examine the proposed ward's medical records. After meeting with the proposed ward, the attorney ad litem will usually file an Answer that generally denies the allegations in the Application for Guardianship and asks that the Applicant prove his or her case to the court.
Step 8. Hold a hearing before the Judge
Once the attorney ad litem has filed his or her Answer, a hearing will take place before a judge. If the Application is uncontested, the hearing is usually very informal and takes less than 15 minutes to complete. In response to my questions, the Applicant will give testimony in support of the allegations stated in the Application for Guardianship. The attorney ad litem will then ask the Applicant a series of questions to confirm that Guardianship is in the best interests of the proposed ward. We have prepared a webpage to assist our clients with the hearing:
Clients wanting access to the questions should call our office for the password.
If the judge agrees that a Guardianship is required and that the Applicant should be named Guardian, then the judge will issue an order to this effect and will direct the probate court clerk to issue "Letters of Guardianship" to the Applicant. These Letters and the Order are the authority the guardian needs to act on behalf of the ward. The judge will also set a bond amount to ensure that the Applicant fulfills his or her duties as Guardian.