Probate & Wills: 214.484.6500
3102 Maple Ave., Suite 625
Dallas, Texas 75201
Dementia, commonly referred to as Alzheimer's disease, is a wicked desease. It steals a person's memory and renders him or her incapable of taking care of his or her finances, making medical decisions, or accomplishing the activities of daily living. Often times, seniors in this situation are vulnerable to exploitation by strangers or even family members. Seniors with dementia often neglect their own health and welfare, and withdraw from their friends and family. If your parent has dementia, you are about to enter a new phase in your life, one where the son or daughter takes care of the parent. Guardianship can be an important tool in that endeavor.
Guardianship is the process by which a court determines that a senior is incapacitated and appoints a Guardian to make decisions for that senior. An “incapacitated” person is defined as an individual who, because of a mental condition, is substantially unable to provide for his or her own food, clothing, or shelter, to care for his or her own physical health, or to manage his or her own finances. 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, that person is deemed to be unable to exercise that right.
Step 1. Obtain a Physician’s Certificate of Medical Examination detailing the nature of the 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 senior (the "proposed ward") is incapacitated. The primary method of proof is the submission of a certificate from the proposed ward’s physican. The courts have created a certificate that is required in all guardianships filed in the state of Texas. The Physician’s Certificate of Medical Examination must be completed my an M.D. or a D.O. and must be based on the physician's findings during an examination occurring within 120 days of the filing for guardianship. The Certificate states the nature and degree of the proposed ward’s incapacity and the specific areas of protection and assistance required. You can 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 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. Any person not having an interest adverse to the proposed ward, has the right to commence a Guardianship proceeding.
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)
If the proposed ward has a significant amount of assets, a “Guardianship of the Estate” will also be required. Usually the probate court will require a Guardianship of the Estate if the proposed ward has more than $5,000.00 in assets or annual income (not counting Social Security). In establishing a Guardianship of the Estate, the judge will require the Guardian post a corporate surety bond from an insurance company in an amount equal to the value of the assets in the estate. Before attempting to obtain a Guardianship of the Estate, it is a good idea to pre-qualify the Applicant with a bond company to ensure that the Applicant will be able to post the required bond. In determining whether to issue a bond, the bond company will usually run a credit check on the Applicant. Please call The Duran Firm to request a current 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 a sheriff or process server. 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 the Applicant is qualified to serve as guardian and whether there is a "lesser restrictive alternative" to Guardianship. The Court Investigator will visit the proposed ward at his or her home and interview the Applicant. The Court Investigator will run a background check on the Applicant that includes sealed APS and CPS reports. 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 then advocate in accordance with the proposed ward's directions in regards to the guardianship. 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. 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. If the Application is uncontested, the hearing is usually very informal and takes less than 30 minutes to complete. You may review an example of my questions below:
Clients wanting access to the template 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 you need 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. In order to qualify the Applicant as Guardian, the Applicant must satisfy the bond requirement and take an oath to faithfully discharge the duties of Guardian. In Dallas County, a Guardian of the Person must 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).
Attorney's Fees - Tarrant County Probate Court Judge Steve King said at a recent CLE, "Nobody wants a Guardianship." This is particularly true for Seniors because they associate guardianship with losing their right to drive and with being "put in a home." Accordingly, guardianships are usually contested by senior citizens. Because there is no way to know in advance how long or how difficult the case will be, there is no way to estimate attorney's fees or costs. Some seniors capitulate to the guardianship early on while others fight to the bitter end. Thus, the only fair way to bill for these types of cases is to bill fees on an hourly basis and bill costs as they are incurred. Effective June 8, 2009, The Duran Firm’s hourly rate for attorney's fees is $225.00 per hour. The Duran Firm's hourly rate for paralegal work is $75.00 per hour. At the Duran Firm, we always provide our clients with an Attorney-Client Fee Agreement that lists the projected fees and costs of the case. We promise that you will know the terms of our relationship prior to your being obligated to pay any money to the Firm.
Bond — The costs for a bond depend on the type of bond required by the Court.
Guardian of the Person Only — In Dallas County, a Guardian of the Person must post a $100.00 cash bond. Many of the surrounding counties do not require a cash bond. Instead, those courts 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. No cash is required unless the guardian fails to perform his or her duties. If the proposed ward does not have significant assets, the bond amount is usually minimal ($500.00 or less).
Guardian of the Estate — A Guardian of the Estate will need to obtain a surety bond issued by a bonding company. Annual premiums are paid directly to the bonding company and are a percentage of the bonded amount (usually 1.5%). The bond is paid out of the assets of the senior.
Court Costs — Texas Probate Courts typically charge approximately $300 to file and serve an application for guardianship. The court will also appoint an attorney ad litem for the senior. Therefore the courts also require applicants to pay a deposit of $400. this is just a deposit, however, because in contested matters, the attorney ad litem's fees could be substnatial. The good news is that the attorney ad litem’s fees are audited and approved by the court. If the guardianship was brought in good faith, the court costs and ad litem's fees are paid out of the senior's estate. If the court finds that the guardianship was brought in bad faith, and the Application for Guardianship is unsuccessful, then the court may order the Applicant to pay both sides' attorney's fees and court costs.
Payment Terms — The Firm accepts cash, checks, money orders, MasterCard and Visa for the payment of attorney’s fees and expenses. Due to the reasonableness of our rates, payment of all expected fees and expenses is due prior to the Firm accepting you as a Client. No exceptions. If you live in a county that is not near the Dallas/Fort Worth Metropolitain area, you may want to call an attorney that has an office near the county courthouse in the county where the proposed ward resides. That attorney’s price is often lower than that of an attorney that must travel.