Wills & Guardianship: 214.227.6400
13355 Noel Rd., Ste. 1100
Dallas, Texas 75240
Because of an intellectual or developmental disability, an adult may not be able to manage 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 important decisions about some or all areas of life and appoints a Guardian to make decisions for that adult.
An “incapacitated” person is an adult 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, that person is deemed to be unable to exercise that right.
The 2015 Texas Legislative session brought major changes to the guardianship provisions of the Texas Estates Code. Many of the substantial changes were brought about by those that feel that guardianship is too restrictive a remedy to care for a person with a special need. Prior law provided that Guardianship was only to be used when it was the least restrictive alternative. Furthermore, the courts and the attorneys were required to tailor the guardianship to fit the ward's needs so that the guardian would only be given those rights and powers needed to protect the ward. Finally, the law provided that the Court could re-assess and modify the guardianship at any time to ensure that it was not overly restrictive.
Nevertheless, the Texas Estates Code was changed to require the courts to make a finding that there are no available alternatives to guardianship. For example, the courts must consider whether any of the following could serve as an "alternative to guardianship":
1) execution of a medical power of attorney under Chapter 166, Health and Safety Code;
2) appointment of an attorney in fact or agent under a durable power of attorney as provided by Subtitle P, Title 2;
3) execution of a declaration for mental health treatment under Chapter 137, Civil Practice and Remedies Code;
4) appointment of a representative payee to manage public benefits;
5) establishment of a joint bank account;
6) creation of a management trust under Chapter 1301;
7) creation of a special needs trust;
8) designation of a guardian before the need arises under Subchapter E, Chapter 1104; and
9) establishment of alternate forms of decision making based on person-centered planning.
Furthermore, the court must also consider whether "supports and services" could provide an alternative to guardianship. The Section 1003.031 of the Texas Estates Code vaguely defines "supports and services" as "available formal and informal resources and assistance that enable an individual to:
1) meet the individual’s needs for food, clothing, or shelter;
2) care for the individual’s physical or mental health;
3) manage the individual’s financial affairs; or
4) make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.
These alternatives to guardianship may be available to our persons with special needs that are able to function on a higher level. For those with profound disabilities, guardianship remains the best option available to care for a person with special needs without fear of having your decision-making authority challenged by a third party.
If the matter is uncontested, obtaining a Guardianship over your son or daughter with special needs can be a simple process. Guardianship can be a complex process 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 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 where the proposed ward lives. By law, the Application cannot be filed any earlier than 180 days before the proposed ward's 18th birthday. There is no time by which a guardianship must be filed. It is never too late. Texas probate courts charge approximately $300 to file an Application for Guardianship. If the proposed ward does not have the assets to pay the fee, we can request a waiver of court costs. Any person, other than a person with 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 $2,000 in assets or annual income (not counting Social Security). If your son or daughter has more than $2,000 in assets, his or her SSI and Medicaid benefits may be in jeopardy. You should call the firm immediately if this is the case.
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 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. 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 20 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 Word Template to assist our clients in sending the notice.
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 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).
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.
Attorney's Fees The attorney's fees for a guardianship depend on the type of guardianship required and whether the matter is contested or disputed.
The Duran Firm cannot quote you a fee until the facts and circumstances of the case are determined. In order to be considered for a fixed fee, the following conditions must be met:
The proposed ward must be a resident of the Dallas/Fort Worth Metropolitan area;
The proposed ward must not have an estate such that the Court would require a guardianship of the estate;
The guardianship must remain completely uncontested;
The affidavits of inability to pay costs must be uncontested; and
The proposed ward's family must be in an agreement as to the guardianship and the person(s) to serve as guardian(s).
The Duran Firm likes to give you a complete picture of what you can expect to pay for your guardianship case. The estimated total attorney's fees and court costs for a guardianship are as follows:
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.
Payment Terms — The Firm accepts cash, checks, money orders, MasterCard and Visa for the payment of attorney’s fees and expenses. In this life we pay for the sins of others, Therefore payment of a retainer and all expected expenses is due prior to the Firm accepting you as a Client.