Emergency Guardianships

Guardianship can be a long, arduous process taking several months to complete. In emergency situations, however, the Texas Estates Code allows for the Court to bypass several procedural requirements in order to get a temporary guardian appointed, usually within 10 days! So what kind of situation must be present for the Court to act on an expedited basis? There must be an "imminent danger" to the Proposed Ward's person or estate.  There must also be substantial evidence to believe the Proposed Ward is an incapacitated person.

In the terms of the Estates Code, there must be an imminent danger that the Proposed Ward's health will be seriously impaired or that the Proposed Ward's estate will be substantially dissipated if the court does not act. So there are two components here. First, the harm must be imminent, meaning that we cannot wait for the court to complete its usual processes before appointing a guardian. The impending harm cannot be speculative, or merely possible. The Applicant must demonstrate that the harm is probably going to occur in a short amount of time unless the court appoints a guardian. Second, the harm must be substantial. The mere fact that a Proposed Ward is incapacitated and may not be doing the best job at caring for him or herself is insufficient. Furthermore, a Proposed Ward that wastes a few dollars here and there does not amount to a substantial dissipation. In order to get an emergency guardianship, there must be substantial harm that is going to happen soon unless the court appoints a guardian.

The second requirement is that there must be substantial evidence to believe the Proposed Ward is incapacitated. Having a Physician's Certificate of Medical Examination is preferable but not required. Often times the Applicant and other disinterested witnesses testify that the Proposed Ward is behaving in an irrational manner such that one can conclude that the Proposed Ward will be found legally incapacitated by a physician.

What are the steps for obtaining an Emergency Guardianship?

You can read all about the individual steps on the Guardianships for Seniors page. Below are the steps that are required to obtain an emergency guardianship:

Step 1. Obtain a Physician’s Certificate of Medical Examination

Helpful, but not required for an emergency guardianship. Often times testimony can supplant a physician's certificate at the temporary stage.

Step 2. Complete the Guardianship Prospective Client Information Worksheet

Step 3. Complete the Application for Bond (if there is an Estate)

Step 4. Return the Documents to the Duran Firm

Step 5. Serve a “Personal Citation” and a copy of the Application for Guardianship upon the Proposed Ward

Notice to the Proposed Ward's family is not required for an emergency guardianship. The Ward is the only person that must be served with notice for an emergency guardianship.

Step 6. Assign a Court Investigator to visit the proposed ward and file a Court Investigator Report

Not required.

Step 7. Appoint an attorney ad litem to represent the interests of the Proposed Ward

Step 8. Hold a hearing before the Judge

As you can see, an emergency guardianship still requires a lot of work. It is merely the tasks that take a substantial amount of time that are bypassed (PCME, Notice to Family, Court Investigator Report). Thus, an emergency guardianship followed by a permanent guardianship often results in double the cost. Sometimes, however, the cost pales in comparison to the damage or harm that could occur if no action is taken.