contested guardianships · advanced guardianship course houston march 9, 2007 chapter 5 . 128 -...

CONTESTED GUARDIANSHIPS

PRESENTED BY:

DARLENE PAYNE SMITH Crain, Caton & James

1401 McKinney, 17th Floor Houston, Texas 77010

Email: [email protected] (713) 752-8640

WRITTEN BY:

SARAH PATEL PACHECO SHARON B. GARDNER

Crain, Caton & James 1401 McKinney, 17th Floor

Houston, Texas 77010 (713) 658-2323

State Bar of Texas ADVANCED GUARDIANSHIP COURSE

Houston March 9, 2007

CHAPTER 5

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DARLENE PAYNE SMITH Crain, Caton & James, P.C. 1700 Five Houston Center

Houston, Texas 77010-4035 713-752-8640

Email - [email protected]

EDUCATION

Bachelor of Science: Criminal Justice, University of Houston (Magna Cum Laude) Doctor of Jurisprudence, University of Houston Law Center

MEMBERSHIPS & CERTIFICATIONS

Texas Bar Association;

Houston Bar Association; Texas Bar Foundation;

Probate Legislative Sub-Committee -- Houston; Past President –Women Attorneys in Tax and Probate;

Former Vice President – Disability and Elder Law Lawyers Association; Planning Committee – Elder Law Section, State Bar; Planning Committee – Wills and Probate Institute;

Elder Law Committee; Certified by the State Bar of Texas Pursuant to Texas Probate Code § 647A as Ad Litem

PERSONAL

Married – Michael David Smith;

Three Children – Stephan, Coleman and Hallie; Hobbies - Singing, pistol shooting, tennis and squash.

SPEAKER/AUTHOR

Speaker: Estate Planning for the Cancer Patient. Speaker: Texas Young Lawyers Association, The Women’s Advocacy Project and Texas

Lawyers Care. Author/Speaker: Texas College of Probate Judges (1991-94) - Head Injury. Speaker: Appeals, Mandamus & Recusal, Legislative Update, Advanced Directives. Author/Speaker: National College of Probate Judges, March 1993, Maui, Hawaii - The

Ramification of Closed Head Injury. Speaker: Advanced Estate Planning and Probate - 1993, State Bar of Texas. Speaker: American Association for the Mentally Ill - 1993.

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Speaker: Texas Association of Legal Secretaries: Mock Trial; 1994. Co-Author/Speaker: State Bar of Texas: New Guardianship Laws in Texas. Topic: Show Cause,

Contempt, Surcharge and Successor Actions; March 1994. Speaker: State Bar of Texas: Elder Law Institute. Topic: An Overview of Guardianships;

1994. Co-Author/ Speaker: State Bar of Texas; Wills and Probate Institute. Topic: Appeals, Mandamus and

Recusal; 1992. Speaker: University of Houston: General Practice. Topic: “Money Saving Tips for

Tomorrow Morning”; 1993, 1994. Co-Author/ Speaker: State Bar of Texas: Advanced Estate Planning and Probate Course. Topic:

Procedural and Evidentiary Overview for the Probate Litigator; 1993. Author/ Speaker: A.G. Edwards, Structured Settlement vs. 142 Trusts. Co-Author Speaker: New Guardianship Forms. Author/ Speaker: Texas College of Probate Judges Probate Seminar. Topic: Accounting, June

1994; Duties of the Attorney Ad Litem Under the Amendments to the Texas Probate Code Affecting Guardianships and Removal and Surcharge, April 1994.

Author/ Speaker: Legislative Changes that Affect Probate Practitioners, Law Seminars, Inc. Speaker: Guardianship Administration and Alternatives - Texas Elder Law Seminar. Speaker: Tips from the Experts - Independent and Dependent Estates. Speaker: University of Houston-Downtown – Guest Lecturer - Business Law, 1992;

University of Houston-Clear Lake – Guest Lecturer - Advanced Directives. Co-Author/Speaker: University of Houston, General Practice Institute – Winter. Topic: Alternatives

to Probate; 1994. Co-Author/Speaker: University of Houston, General Practice Institute – Summer. Topic: Law Office

Management for General Practitioners; 1994. Co-Author/Speaker: South Texas College of Law, Wills and Probate Institute. Topic: Structuring

Family Settlement Agreements to Avoid Will contests; 1994. Speaker: State Bar of Texas 18th Annual Advanced Estate Planning and Probate Course.

Topic: Reformation and Construction Suits; June 1994. Author/Speaker: State Bar of Texas. Topic: Effect of Guardianships and Criminal Proceedings on

Mental Health Hearings; March 1995.

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Author/Speaker: State Bar of Texas Annual Meeting, Red Flags and Hot Topics, Selected Issues in Texas Law. Topic: Guardianship and Ad Litems – Changes that May Affect You; June 1994.

Speaker: National Association of Estate Planning Councils 1994 Annual Convention.

Topic: Fiduciary Liability from the Perspective of a Probate Trial Attorney. Speaker: Wills and Probate Institute – South Texas College of Law. Topic: Avoiding

Will Contests; September 28-29, 1995. Speaker: State Bar of Texas. Topic: Contesting a Guardianship and Other Important

Issues; December 1, 1995. Author/Speaker: State Bar of Texas – Advanced Estate Planning and Probate. Topic: Damages;

June 1996. Author/Speaker: State Bar of Texas – Advanced Strategies. Topic: Avoid Will Contests and Other

Fiduciary Litigation; San Diego; April 1997. Speaker: Tarrant County Probate Bar Luncheon: Topic: Attorney Ad Litem: How Far

Do You Go? Guardian Ad Litem: Best Interest, Etc.; August 7, 1997. Speaker: Midland County Probate Bar Luncheon: Topic: Guardianship laws: The Basics,

October 14, 1997. Author/Speaker: State Bar - Legal Assistants Division - Advanced Estate Planning and Probate

Law Seminar; Topic: Advanced Directives, Powers of Attorney and Disclaimers; October 17-18, 1997.

Author/Speaker: State Bar of Texas First Annual Texas Marital Property Institute. Topic:

Damages, Including Attorney’s Fees; October 9-10, 1997. Author/Speaker: Docket Call in Probate Court - Estate Planning, Probate, and Guardianship

Seminar; Topic: Dealing With The Difficult Client; San Antonio; January 22-23, 1998.

Author/Speaker: Guardianship Institute 1998; Topic: Advanced Directives, Powers of Attorney

and Disclaimers; Dallas; February 13, 1998. Co-Author/Speaker: Putative Spouses and Their Role in the Probate Process. Speaker: Houston Bar Association/Family Law Section; Topic: Family Law Cases Do

Not Exist in a Vacuum; Probate Issues with Family Law Cases; August 1998. Speaker: Trust Financial Services Division/Texas Bankers Association; Topic: Dealing

With The Difficult Client; Dallas; January 14, 1999. Speaker South Texas College of Law; Topic: Probate and Guardianship Issues Under The

New Discovery Rules; February 12, 1999.

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Winter/Speaker Disability and Elders Law Attorneys Association; Topic: Probate and Guardianship Issues Under The New Discovery Rules; February 15, 1999.

Speaker Texas Bar Association; Telephone Conference Seminar; Topic Probate and

Guardianship Issues Under The New Discovery Rules; March 17, 1999. Speaker University of Houston Law Foundation, Wills and Probate Institute; Topic: The

Anatomy of a Will; Practical Considerations in Will Drafting; Dallas - July, 22-23, 1999; Houston -July 29-30, 1999.

Speaker The University of Texas School of Law; Intermediate Estate Planning,

Guardianship and Elder Law; Topic: Duties and Responsibilities of Ad Litem; August 26-27, 1999.

Speaker Texas College of Probate Judges, Annual Conference; Topic: Show Cause,

Contempt, Surcharge and Injunctive Actions; September 9-11, 1999. Speaker South Texas College of Law; Wills & Probate Institute; Topic: Anatomy of a

Will; September 16-17, 1999. Speaker San Antonio Young Lawyers Association; Docket Call 2000; Topic: How to

Initiate a Guardianship; January 6-7, 2000. Speaker Disability and Elders Law Attorneys Association; Topic: Show Cause, Contempt,

Surcharge, and Injunctive Actions; February 21, 2000. Speaker KSEV Radio Talk Show; Topic: Legal Speaking; one hour talk on trusts; March

26, 2000. Author/Speaker: State Bar of Texas – Advanced Estate Planning and Probate. Topic: Ten

Unanswered Questions in Probate; June 2000. Author/Speaker: Tarrant County Bar Association – Probate Section. Topic: Anatomy of a Will;

July 2000. Author/Speaker: Texas College of Probate Judges. Topic: Show Cause, Contempt, Surcharge, and

Injunctive Actions; August 2000. Speaker/Facilitator: Houston Bar Association - Family/Probate Bench Bar Conference; October 27 &

28, 2000. Guest Lecturer South Texas College of Law - Estate Planning & Probate - Creditor Claims; March 2001 Author Texas Collection Manual - Third Edition: Probate and Guardianship Section; March 2001 Course Director State Bar of Texas Advanced Estate Planning and Probate Course; June 2001 Speaker University of Houston Law Center, Wills and Probate Institute Course; July 2001

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Speaker Judge Rory Olsen’s Class on Chemical Dependency, “The Role of The Ad

Litem”; October 2001 Speaker San Antonio Young Lawyers Association “Docket Call in Probate Courts

Seminar”; April 2002 Speaker South Texas College of Law “Representing the Elderly Client”; May 2002 Advisory Committee Wills & Probate Institute, University of Houston Law Foundation; May 2002 Speaker State Bar of Texas Advanced Estate Planning and Probate Course; June 2002 Speaker Victoria Area Estate Planning Counsel; Court Created Section 867 Trusts;

November 2002 Speaker South Texas Collage of Law “Guardianship Certification Course for Ad Litem

Appointments in Probate Court”; January 2003 Manual Committee State Bar of Texas - Texas Guardianship Manual, Second Edition; May 2003 Speaker Advanced Personal Injury Law Course, Dallas; “Probate Issues in a Personal

Injury Case”; June 2003 Speaker Advanced Personal Injury Law Course, Houston; “Probate Issues in a Personal

Injury Case”; July 2003 Speaker Advanced Personal Injury Law Course, San Antonio; “Probate Issues in a

Personal Injury Case”; August 2003; Speaker Tarrant County Probate Bar Association Second Annual Probate Litigation

Seminar; “Avoiding Sudden Death or at Least Temporary Incapacitation of your Case in Probate Court – Including Jurisdiction and Probate”; October 3, 2003

Co-Author/Speaker State Bar of Texas – 14th Annual Advanced Drafting Estate Planning and Probate

Course; Dallas, Texas; “Will Your Notes Nail You? (Notes, Video, Audio, Emails, Comments and Other Faux Paus)”; October 23-24, 2003

Speaker Klein Forest High School “Anniversary of Brown v. Board of Education”, May

2004 Author/Speaker Fiduciary Litigation 2004, Texas Bar CLE, Houston, May 6-7, 2004 Co-Author/Speaker El Paso Probate Bar Association, Texas College of Probate Judges; “Probate

Surcharge and Preliminary Proceedings”; May 12-13, 2004 Speaker El Paso Probate Bar Association, Texas College of Probate Judges; “Independent

Administration”; May 12-13, 2004

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Co-Author/Speaker Wills and Probate Institute, University of Houston Law Foundation, Houston; “Dependent Administrations”; May 20-21, 2004

Speaker/Author Advanced Estate Planning and Probate Course; San Antonio, Texas; “How Your

Notes Can Get You Into Trouble”; June 9-11, 2004 Speaker/Author Texas State Bar, Charitable Giving Course; San Antonio, Texas, “Giving Till it

Hurts---You”, July 29-30, 2004 Speaker/Author Tarrent County Probate Bar Association 3rd Annual Probate Litigation Seminar;

Fort Worth, Texas, “Jury Charges In Probate”, September 17, 2004 Speaker/Author Texas Bankers Association Personal Trust Seminar; Dallas, Texas, “Dealing with

the Difficult Client and/or Beneficiary”, October 7, 2004 Speaker/Author Houston Estate and Financial Forum; Houston, Texas, “Will Your Notes Nail

You? (Notes, Video, Audio, Emails, Comments and Other Faux Paus That Cause Problems)”, November 18, 2004

Speaker/Author TBA Trust Financial Services Division, Court Created Trusts Seminar, Dallas,

Texas; “Court-Created 867 Trusts Practical Approach; March 5, 2005 Speaker Case Law Update, Reliant Decision; Houston, Texas; The Disability and Elder

Law Attorneys Association; March 21, 2005 Advisor University of Houston Wills and Probate Advisory Committee – 1995 to present Speaker H.B.A. Speech to the Elderly, Houston, Texas, “Guardianship Alternatives and

Settling Contested Guardianships”; May 17, 2005 Speaker National Business Institute, Houston, Texas, “The Probate Process from Start to

Finish”, May 17, 2005 Speaker/Author El Paso Planned Giving Counsel, University of Texas at El Paso, El Paso, Texas,

“Giving Till it Hurts you”; May 23, 2005 Speaker/Author State Bar of Texas – Avoiding Malpractice, Dallas, Texas, “Personal Injury

Involving Probate From Beginning to End or Silver Bullets That Can Kill Your Case”, July 12, 2005

Speaker/Author State Bar of Texas – Avoiding Malpractice, San Antonio, Texas, “Personal Injury

Involving Probate From Beginning to End or Silver Bullets That Can Kill Your Case”, August 2, 2005

Speaker/Author State Bar of Texas – Avoiding Malpractice, Houston, Texas, “Personal Injury

Involving Probate From Beginning to End or Silver Bullets That Can Kill Your Case”, August 24, 2005

Speaker South Texas College of Law – Wills and Probate Institute, Houston, Texas,

“Investment Plans and Guardianships”, September 16, 2005

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Speaker/Author Tarrent County Probate Bar Association – Litigation Seminar, Ft. Worth, Texas,

“Personal Injury Involving Probate From Beginning to End or Silver Bullets That Can Kill Your Case”, October 14, 2005

Speaker/Author Jefferson County Bar Association CLE – Avoiding Malpractice, Beaumont,

Texas, “Avoiding The Silver Bullets That Can Kill Your Case”, October 28, 2005

Speaker Houston Bar Association – Guardianship Certification Court For Ad Litem

Appointments 2006, Houston, Texas, "The Role of the Attorney Ad Litem in a Contested Guardianship Proceeding", January 27, 2006

Contested Guardianships Chapter 5

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CONTESTED GUARDIANSHIPS

I. SCOPE OF ARTICLE .........................................................................................................1

II. INITIAL CONSIDERATIONS............................................................................................1 A. Standing to Contest Guardianship ................................................................................1

1. General Rule..........................................................................................................1 a. Attorney ad Litem ..........................................................................................1 b. Other Persons .................................................................................................1

2. Exception...............................................................................................................1 a. Adverse Interest..............................................................................................1 b. Examples of Adverse Interest ........................................................................1

(1) Potential Creditor ....................................................................................2 (2) Spouse With Financial Interest Adverse to Incapacitated Spouse..........2 (3) Parent With Financial Interest Adverse to Minor ...................................2 (4) Person With Duty to Account to Proposed Ward ...................................3 (5) Guarantor of a Ward’s Promissory Note.................................................3

c. Potential Adverse Interest ..............................................................................3 3. Procedure to Challenge Standing ..........................................................................4

a. Matter of Law.................................................................................................4 b. Issue of Fact ...................................................................................................4 c. Appeal ............................................................................................................4

B. Disqualification ............................................................................................................5 1. General Rule..........................................................................................................5

a. Minor..............................................................................................................5 b. Notoriously Bad .............................................................................................5 c. Incapacitated Person.......................................................................................5 d. Party to Lawsuit Involving Proposed Ward ...................................................5 e. Person Indebted to Proposed Ward ................................................................5 f. Person Asserting Claim Adverse to Proposed Ward......................................5 g. Incapable Person ............................................................................................5 h. Non-Residence Without Resident Agent .......................................................6 i. Unsuitable Person...........................................................................................6 j. Disqualified by Declaration ...........................................................................6

2. Raising Issue Of Disqualification..........................................................................6 C. Contested Guardianship of Minor’s Estate...................................................................6

III. PROCEDURAL ISSUES.....................................................................................................7 A. Service of Citation ........................................................................................................7

1. Verify Proper Service ............................................................................................7 a. Permanent Guardianships...............................................................................7 b. Temporary Guardianships ..............................................................................8 c. Application to Amend Temporary to Permanent Guardianship.....................8 d. Failure to Meet Service and Notice Requirements on Guardianship.............8


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B. Motions to Show Authority ..........................................................................................9 1. Attorney Purporting to Represent Ward................................................................9 2. Texas Rule Of Civil Procedure 12.........................................................................9

C. Motion for Security for Costs .....................................................................................10 D. Right to Request Jury Trial.........................................................................................10

1. Authority..............................................................................................................10 a. Texas Probate Code......................................................................................10

(1) Section 643............................................................................................10 (2) Section 685............................................................................................10 (3) Section 21..............................................................................................10

b. Texas Constitution........................................................................................10 2. Types of Guardianship Proceedings Which May Be Tried to Jury.....................11

a. Permanent Guardianship ..............................................................................11 b. Temporary Guardianship..............................................................................11

3. Issues Which May Be Tried to Jury ....................................................................11 a. Capacity........................................................................................................11 b. Suitability to Serve .......................................................................................11 c. Selection Between Suitable Persons ............................................................11

E. Whether To Request a Jury.........................................................................................11 1. Issue of Capacity .................................................................................................11

a. Seeking to Prove Incapacity.........................................................................11 b. Seeking to Prove Capacity ...........................................................................12

2. Right to Serve ......................................................................................................12 a. Spouse ..........................................................................................................12 b. Others ...........................................................................................................12

3. Jury Questions .....................................................................................................12 a. Frequency .....................................................................................................12 b. Burden of Proof - Permanent Guardianship.................................................12 c. Proposed Instructions of Applicant on Capacity..........................................12 d. Proposed Instruction of Contestant or Proposed Ward on Capacity............13 e. Qualification or Disqualification of a Proposed Guardian...........................13 f. Applicant’s Instruction on Qualification......................................................13 g. Contestant or Proposed Ward Instruction on Disqualification ....................13 h. Designation of Guardian - Issue in Contest .................................................13 i. Forms............................................................................................................14

F. Right to Close Hearing ...............................................................................................14 G. Continuances...............................................................................................................14 H. Temporary Guardianships Pending Contest ...............................................................14

IV. MEDICAL AND RELATED EVIDENCE........................................................................14 A. Examinations and Reports ..........................................................................................14 B. Confidentiality of Medical Information .....................................................................15

1. Texas Rules of Civil Evidence ............................................................................15 a. Doctor/Patient Privilege ...............................................................................15

(1) General Rule .........................................................................................15 (2) Waiver of Privilege ...............................................................................15


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b. Confidentiality of Mental Health Information .............................................16 (1) General Rule .........................................................................................16 (2) Waiver of Privilege ...............................................................................16

c. Authorized Disclosure..................................................................................16 (1) Guardianship Miranda Warning............................................................16 (2) Prepare Medical Experts In Advance....................................................16

d. Options if Guardianship Miranda Not Given ..............................................16 C. Confidentiality of State and County Agency Reports ................................................17

1. Human Resources Code Section 48.101 .............................................................17 a. General Rule: Not Discoverable .................................................................17 b. Exception......................................................................................................17

V. ASSEMBLING AND PREPARING WITNESSES ..........................................................17 A. Experts ........................................................................................................................17

1. Retain Qualified Experts .....................................................................................17 2. Qualifying an Expert ...........................................................................................17 3. Questions for the Expert on Incapacity ...............................................................18

B. Lay Witnesses.............................................................................................................19 1. Generally .............................................................................................................19 2. Potential Witnesses..............................................................................................19

C. Court Investigator’s Report ........................................................................................19

VI. CONSIDERATIONS IN PREPARING FOR THE HEARING ........................................19 A. Address Any Physical Problems of Proposed Ward...................................................19 B. Discovery....................................................................................................................19 C. Proposed Ward’s Appearance.....................................................................................20 D. Getting Proposed Ward to Courthouse .......................................................................20 E. Consider Medications .................................................................................................20 F. Money Management ...................................................................................................20 G. Plea to the Judge .........................................................................................................20 H. Ward’s Presence in Courtroom...................................................................................20 I. Preference of Ward .....................................................................................................21

VII. CONSIDERATIONS DURING HEARING .....................................................................21 A. Burden of Proof ..........................................................................................................21 B. Raising Hearsay Objection as to Doctor’s Letter .......................................................21 C. Dead Man’s Statute ....................................................................................................22 D. Findings Required by the Court..................................................................................23

1. Clear and Convincing ..........................................................................................23 2. Preponderance .....................................................................................................23

E. Order Appointing Guardian........................................................................................23

VIII. ATTORNEYS’ FEES ........................................................................................................24 A. General Rule ...............................................................................................................24 B. Plead Good Faith and Just Cause ...............................................................................24 C. Form of Request .........................................................................................................24


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D. Objections to Fees ......................................................................................................24

IX. MEDIATION AND ADR..................................................................................................24 A. General Overview.......................................................................................................24 B. Reasons to Mediate.....................................................................................................25

1. Preserving the Proposed Ward’s Rights ..............................................................25 2. Avoiding the Cost of Litigation...........................................................................25 3. Preserving Family Relationships.........................................................................25 4. Bridge for Communications ................................................................................26

C. Getting to Mediation...................................................................................................26 D. Ethical Issues in Mediation.........................................................................................26

1. Good Faith ...........................................................................................................26 2. Maintaining Client Confidences..........................................................................26

E. Settlement in Mediation..............................................................................................27


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I. SCOPE OF ARTICLE Every guardianship is initially a “contested” guardianship. At a minimum, the court must appoint an attorney ad litem to advocate for the proposed ward. In some cases the attorney ad litem needs only to ensure the applicant does his or her job and meets their burden of proof. Other guardianships, however, involve issues of adverse interest, disqualification, involvement of protective agencies, and disputes over who is better qualified to serve. This article is intended to provide practical tips to probate practitioners in dealing with the full range of potential “contested” guardianship issues. The article concludes with a discussion of the use and benefits of ADR in guardianship proceedings, particularly mediation. Distrust and emotional issues between parties often lead to contested guardianships. These issues can sometimes be resolved with the help of a skilled mediator who is familiar with guardianship proceedings. All references to sections will refer to the Texas Probate Code unless otherwise noted. II. INITIAL CONSIDERATIONS A. Standing to Contest Guardianship 1. General Rule a. Attorney ad Litem The court must appoint an attorney ad litem to represent the proposed ward in a proceeding to create a guardianship. TEX. PROB. CODE ANN. § 646(a) (Vernon Supp. 1999). This applies to both incapacitated adults and minors. The attorney ad litem’s job is to represent and advocate on behalf of the proposed ward. TEX. PROB. CODE ANN. § 601(1) (Vernon Supp. 1999). As such, the attorney ad litem will be a “contestant” in every guardianship proceeding. b. Other Persons Subject to a few exceptions, anyone may commence a guardianship proceeding or appear and contest a guardianship proceeding or the appointment of a particular person as guardian. TEX. PROB. CODE ANN. § 642(a) (Vernon Supp. 1999); see also Torres v. Ramon, 1999 WL692655; Docket No. 04-98-0088-CV (Tex.

App.–San Antonio 1999, no pet. history to date) (not yet reported). 2. Exception a. Adverse Interest A person lacks standing to contest a guardianship proceeding if they have an “adverse interest” to the proposed ward. If it is determined that one lacks standing, he or she may not:

C file an application to create a guardianship;

C contest the creation of a guardianship; C contest the appointment of a certain

person or persons as guardian of the proposed ward’s person or estate, or both; or

C contest an application to restore a ward’s capacity or modify the guardianship.

TEX. PROB. CODE ANN. § 642(b) (Vernon Supp. 1999) (this section is substantially a recodification of former Section 113). Note that the statute does not prohibit an individual from bringing the need for a guardian to the court’s attention informally through its investigator, through a letter to the court, or through contacting agencies to initiate the process. b. Examples of Adverse Interest The Texas Probate Code does not define what constitutes an “adverse interest” or provide much, if any, guidance on what the court may deem to be one. Further, no Texas court has clearly defined an “adverse interest” under § 642(b). However, the term “adverse interest” has been defined in cases decided under Texas Probate Code § 681. This section disqualifies persons from serving as guardian if they are asserting a claim to property that is adverse to the ward. See also discussion of disqualifications in II.B., infra. Courts have been inclined to view these cases as persuasive authority in determining what constitutes an adverse interest under Section 642(b). Examples of individuals who have an adverse interest to a proposed ward include:


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(1) Potential Creditor A potential creditor of a proposed ward clearly lacks standing to seek or contest a guardianship proceeding. For example, the Defendant in a personal injury lawsuit could not enter the guardianship proceeding and contest any stage of the action. Allison v. Walvoord, 819 S.W.2d 624 (Tex. App.–El Paso 1991, no writ). The Allison decision lead to the enactment of the statutory adverse interest exception to standing. In Allison, a wife filed an application seeking to be appointed limited guardian of her husband. At the time the wife filed her application, her husband was the named defendant in two different lawsuits. Both plaintiffs were still in the discovery stage when the wife filed her application. The plaintiffs contested the wife’s application for guardianship because they were concerned the commencement of a guardianship proceeding and the appointment of a guardian might adversely affect future discovery. The wife filed a motion challenging the plaintiffs’ standing to appear and contest the wife’s application for guardianship. The trial court, under a liberal reading of repealed Section 113 (similar to Section 642), denied the wife’s motion and found the potential creditors had standing in the guardianship application. The El Paso Court of Appeals reversed the trial court, directing it to strike plaintiffs’ contest to the guardianship application, stating, “[t]he act is to ‘protect the well-being of the individual’ and those with an adverse interest can hardly qualify as being persons interested in protecting his well-being.” Id. at 627. (2) Spouse With Financial Interest Adverse to Incapacitated Spouse Although spouses generally have priority to serve as guardian of his or her incapacitated mate, they may be disqualified if they have a financial interest adverse to the incapacitated spouse. For example, a spouse seeking a divorce has an adverse interest. Further, a spouse may be disqualified if issues exist relating to the characterization of the couple’s martial estate. Dobrowolski v. Wyman, 397

S.W.2d 930 (Tex. Civ. App.–San Antonio 1965, no writ). In Dobrowolski, a husband was appointed guardian of his wife of seventeen years. Both the husband and wife were previously married, had children from their prior marriages, and owned separate property. After the husband’s appointment, the wife’s daughter sought to remove him, arguing he was disqualified because he had claims potentially adverse to the ward regarding the characterization of the couple’s property, i.e., whether it was community or separate. The trial court agreed and removed the husband as guardian. On appeal, the husband stated that he was not asserting claims to any of the couple’s assets or seeking an accounting of their assets. Nonetheless, the court of appeals affirmed the husband’s removal, holding that guardians have a duty to determine the nature and extent of a ward’s estate. Id. at 932 (citing Dakan v. Dakan, 83 S.W.2d 620 (Tex. 1935)). Because the couple’s property had been commingled, a complete accounting would be needed to determine each spouse’s separate property. In determining her assets, ward’s guardian would have the duty to protect her interests and to represent her in any accounting matters. Because of the possibility of conflicting claims during the accounting process, the husband had an adverse interest and was disqualified. Id. at 932. (3) Parent With Financial Interest Adverse to Minor Parents have priority to serve as guardian of their minor child’s estate. However, a parent may be disqualified if he or she has a financial interest adverse to the child. For example, in Phillips v. Phillips, the San Antonio Court of Appeals held that a surviving parent who sought to be appointed guardian of her minor children’s estate had an interest adverse to her children relating to the settlement of her deceased spouse’s estate. 511 S.W.2d 748, 752 (Tex. Civ. App.–San Antonio 1974, no writ). In Phillips, Mr. Phillips died intestate and Mrs. Phillips was appointed administratrix of her husband’s estate. Mrs. Phillips filed the inventory and appraisement showing substantial

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separate property. She later amended the inventory to show no separate property. Over her objections, the court appointed the minor children’s grandfather as guardian to pursue their interests in Mr. Phillips’ estate. The court found that Mrs. Phillips was asserting an interest in property adverse to the minors, and, accordingly, she was disqualified to act as guardian. In addition, the court found that if such property was correctly classified as the husband’s separate property, Mrs. Phillips could have a claim for community reimbursement against the separate property for the amount of community property used to retire the debt on the separate property. This claim would need to be filed with the guardian; and, “if appellant was appointed guardian and such a claim filed, she would be passing on her own claim.” Id.; see also Penny v. Hampton, 283 S.W. 599 (Tex. Civ. App.–Texarkana 1926, no writ). (4) Person With Duty to Account to Proposed Ward Persons who owe a duty to account to the proposed ward may have an adverse interest. For example, an agent under a power of attorney executed by a proposed ward has a duty to account to the guardian of the proposed ward’s estate. TEX. PROB. CODE ANN. § 485 (Vernon Supp. 1999). Thus, the agent may have an adverse interest to the proposed ward because if he is appointed guardian, he will be accounting to himself for his prior actions. Similarly in In re Guardianship of Henson, a partner in a partnership inherited by minor wards was disqualified to serve as guardian of the minors’ estates. 551 S.W.2d 136 (Tex. Civ. App.–Corpus Christi 1977, writ ref’d n.r.e.). In Henson, Mr. Henson, his mother and brother, Daniel, were partners in a restaurant venture. Both Mr. and Mrs. Henson died unexpectedly. Under the terms of his will, Mr. Henson’s interest in the restaurant passed to his minor children. Further, the will appointed Daniel as the children’s designated guardian. Mrs. Henson’s sister filed an application to be appointed guardian of the children. Daniel filed a contest to the application asserting that he had priority to serve because he was designated as guardian in Mr. Henson’s will. The trial

court held that Daniel was disqualified as a matter of law from serving as guardian of the minor children’s persons. Id. at 138. The appellate court affirmed, holding that Daniel was disqualified because he had a duty to account to the proposed ward for all draws on the partnership since the father’s death. The court stated it believed the “undisputed evidence establishes as a matter of law that [the brother] does own interests which are adverse to the children and is indebted to them.” Id. at 139 (emphasis added). (5) Guarantor of a Ward’s Promissory Note One could argue that a person who has guaranteed a note or debt obligation of the proposed ward has an adverse interest. Because of the strict claims requirements, guardians are sometimes able to bar or delay the payment of certain debt obligations of a ward. If the person appointed guardian has previously executed a guarantee on ward’s behalf which may subject him or her to personal liability in the event of non-payment, the guardian’s personal interest may conflict with ward’s. Note, however, Texas law is not clear whether this will be considered a conflict of interest as no Texas court has directly addressed this issue to date. c. Potential Adverse Interest In the decision of Adcock v. Sherling, the San Antonio Court of Appeals clarified the definition of “adverse interest” by distinguishing a potential adverse interest from an existing adverse interest. 923 S.W.2d 74 (Tex. App.–San Antonio 1996, no writ). Potential adverse interests will not disqualify a person from seeking or contesting a guardianship proceeding. The Adcock court held that ward’s son did not have an “adverse interest” to ward merely because he was holding a certificate of deposit for her benefit as trustee. The court noted that the evidence presented to the trial court showed the son was not indebted to the ward, he had no claim adverse to ward or her property, and that none of the funds represented by the certificate and accumulated interest had been spent. The court further noted that the record did not establish how the son’s duty as trustee of the trust for ward’s benefit would conflict with his




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role as guardian. Therefore, the court found that:

while there potentially could have been an adverse claim or a conflict of interest, there is, in fact, no such adverse claim or conflict because Adcock’s position concerning the money, that is to be held by him and his brother to be used for their mother’s benefit, is the same interest that the estate has in the property.

Id. at 77. 3. Procedure to Challenge Standing The procedure for challenging standing in a guardianship is by motion in limine. See TEX. PROB. CODE ANN. § 642(c) (Vernon Supp. 1999); see also, Womble v. Atkins, 331 S.W.2d 294 (Tex. 1960). In short, a motion in limine is a mini-trial. Its purpose is to dispose of select issues before the trial on the merits of the case, i.e., the proceeding to establish a guardianship. Therefore, if a contest is filed, the applicant (or contestant) should attempt to determine as soon as possible whether the contestant (or applicant) may have an adverse interest to the proposed ward. Discovery methods such as interrogatories, requests for production, and depositions, are useful in determining whether an adverse interest exists. See discussion at VI.B, infra. If it appears that a party has an adverse interest, a motion in limine should be filed and set for hearing. This allows the court to consider the motion and potentially resolve the contest if the adverse interest is established. There is no right to a jury trial on a motion in limine. See b., supra. Form: A sample Motion in Limine is attached as Exhibit A. a. Matter of Law In some cases, no genuine issue of fact exists as to whether the party lacks standing under Section 642(b). For example, a party in a guardianship proceeding who is indebted to the proposed ward, as evidenced by a written

promissory note or judgment. In such cases, consider filing a motion for partial summary judgment seeking a ruling that contestant has an adverse interest as a matter of law. This tactic may eliminate the necessity for a full evidentiary hearing on the motion in limine and incurring the related attorneys fees and expenses. b. Issue of Fact If issues of fact exist as to whether a party has an adverse interest, the court will hold a full evidentiary hearing on the motion in limine. As previously discussed, this is essentially a trial limited to the issue of standing. Because standing is an issue for the court, a party is not entitled to a jury trial. See, e.g. Allison, 819 S.W.2d at 627; Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (standing is an aspect of jurisdiction and can be raised on appeal); cf Von Behrer v. Von Behrer, 800 S.W.2d 919 (Tex. App.–San Antonio 1990, writ denied), (party to suit for managing conservator not entitled to jury trial on threshold issue of standing). However, each party may call and cross-examine witnesses. Upon the conclusion of the trial, the judge will determine whether the party has an adverse interest and, thus, lacks standing in the guardianship proceeding. If the court finds an adverse interest, the adverse party’s pleadings will be stricken and the case should be simplified. The fact issues are complicated if two parties are alleging adverse interest against each other and the cases do not merit summary judgment. c. Appeal A finding that a party lacks standing constitutes a final judgment and may be appealed. See A&W Industies, Inc. v. Day, 977 S.W.2d 738, 740 (Tex. App.–Fort Worth 1998, no pet.) (citing Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Fischer v. Williams, 331 S.W.2d 210, 213-14 (Tex. 1960); see also Womble v. Atkins, 331 S.W.2d at 297 (holding that dismissal of probate action because party is not an interested party is “in no sense . . . interlocutory” and is a final, appealable judgment). Thus, a stricken party should file a motion for new trial or notice of appeal within














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thirty (30) days from the date the court finds that the party lacks standing. On appeal, the appellate court will review the correctness of the court’s conclusions of law as drawn from the facts. See A&W Industries, Inc. v. Day, 977 at 741 (citing Mercer v. Budworth, 715 S.W.2d 693, 697 (Tex. App.–Houston [1st Dist.] 1986, writ ref’d n.r.e.) overruled on other grounds, Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 894 (Tex. 1991). The trial court conclusions of law are reviewable de novo as a question of law, and will be upheld on appeal if they can be sustained on any legal theory supported by evidence. A&W Industries, Inc. v. Day, 977 at 742 (citing Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex. App.–Houston [1st Dist.] 1992, writ dism’d w.o.j.)). B. Disqualification 1. General Rule Section 681 prohibits the following individuals from being appointed guardian. a. Minor A minor is disqualified to serve as a guardian. TEX. PROB. CODE ANN. § 681(1) (Vernon Supp. 1999). b. Notoriously Bad A person who is “notoriously bad” is disqualified to serve as guardian. TEX. PROB. CODE ANN. § 681(2) (Vernon Supp. 1999). A notoriously bad person may include a person convicted of child or spousal abuse, a spouse who had abandoned his or her mate, or a person who has shown indifference, neglect or cruelty towards the proposed ward. See Legler v. Legler, 37 S.W.2d 284 (Tex. Civ. App.–Austin 1931, no writ) (husband disqualified because he abandoned wife for ten years). A determination of what constitutes notoriously bad conduct will generally be an issue of fact for the judge or jury. c. Incapacitated Person An incapacitated person is disqualified to serve as a guardian. TEX. PROB. CODE ANN. § 681(3) (Vernon Supp. 1999).

d. Party to Lawsuit Involving Proposed Ward An individual who is a party to a lawsuit, or whose parents are parties to a lawsuit concerning or affecting the proposed ward’s welfare is disqualified to be appointed guardian unless (i) the court determines that the applicant and the proposed ward’s interests do not conflict, or (ii) the court appoints a guardian ad litem to cure the conflict. TEX. PROB. CODE ANN. § 681(4) (Vernon Supp. 1999); see also Mireles v. Alvarez, 789 S.W.2d 947 (Tex. App.–San Antonio 1990, writ denied) (husband disqualified to serve as wife’s guardian because both were co-plaintiffs in lawsuit). e. Person Indebted to Proposed Ward A person who is indebted to the proposed ward is disqualified to serve as guardian. This is probably the most common grounds for disqualification. The debt may be evidenced by the written instrument creating it or by other evidence of its existence. The debtor may rectify this disqualification by repaying the debt prior to his or her appointment. TEX. PROB. CODE ANN. § 681(5) (Vernon Supp. 1999). f. Person Asserting Claim Adverse to Proposed Ward Any person asserting a claim which may be adverse to the proposed ward or his or her estate is disqualified. TEX. PROB. CODE ANN. § 681(6) (Vernon Supp. 1999). This is probably the second most common ground for disqualification. It is intended to prevent the proverbial fox from watching the henhouse. A detailed discussion of these claims appear at II.A.2.b supra. g. Incapable Person A person who is incapable, due to lack of education, experience or otherwise, of managing and controlling the proposed ward’s person or estate is disqualified from serving as guardian. TEX. PROB. CODE ANN. § 681(7) (Vernon Supp. 1999). Trimble v. Texas Dept. of Protec. Service, 981 S.W.2d 211 (Tex. App.–Houston [14th Dist.] 1998, no pet.). An individual will not be automatically disqualified simply because he or she lacks knowledge of guardianship law or does not have a business degree. Rather, the








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court will consider the experience of the applicant in light of the issues which may be involved in administering the proposed ward’s estate. Thus, an individual may qualify to serve as guardian of one individual but not of another. See Blackburn v. Gantt, 561 S.W.2d 269 (Tex. Civ. App.–Houston [1st Dist] 1978, no writ) (bank appointed guardian instead of son to administer ward’s considerable estate). h. Non-Residence Without Resident Agent A non-resident of Texas may not be appointed guardian in Texas unless they have filed a designation of resident agent in the guardianship proceeding. TEX. PROB. CODE ANN. § 681(10) (Vernon Supp. 1999). Accordingly, if applicant is a non-resident of Texas, the application for guardianship and a designation of resident agent should be filed contemporaneously, if possible. The designation must be filed prior to the hearing to appoint a guardian. If it is a trial on the merits and the non-resident applicant rests before filing his resident agent designation, he is disqualified. i. Unsuitable Person The court may find that a person, corporation or institution is “unsuitable,” and thus, disqualified to be appointed guardian. TEX. PROB. CODE ANN. § 681(8) (Vernon Supp. 1999). This catchall phrase opens the door to numerous scenarios which may prove are unsuitable. j. Disqualified by Declaration A person may be disqualified if the proposed ward executed a written declaration pursuant to Section 679 that specifically disqualifies the individual. TEX. PROB. CODE ANN. § 681(9) (Vernon Supp. 1999). This document is prima facie proof of the proposed ward’s intent unless it is alleged that the proposed ward lacks capacity to execute the designation. 2. Raising Issue Of Disqualification If a potentially disqualified person seeks to be appointed guardian, it is preferable to file a contest to such application setting forth the basis for disqualification. If the court characterizes

the grounds for disqualification an “adverse interest” under Section 642, it may then find the party lacks standing and strike their pleadings. As discussed previously, some individuals may be disqualified as a matter of law. See In re Guardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App.–Corpus Christi 1977, writ ref’d n.r.e.). This may allow a party to expeditiously dispose of the issue of a particular party’s ability to be appointed. It is not clear, however, whether a disqualified person has standing to remain a party to a guardianship proceeding when his or her disqualification is not deemed to an “adverse interest” under Section 642. Accordingly, individuals disqualified under Section 681 may still have standing under Section 642 to contest the appointment of another person or promote the appointment of another individual or entity. Note that the issue of disqualification may be raised for the first time at trial. See Hensen, at 138 (issue of disqualification tried by consent when party failed to object to pleadings at trial). C. Contested Guardianship of Minor’s Estate Practitioners should be cognizant of the rarely used Probate Code Section 609, entitled Contested Guardianship of the Person of a Minor. The Probate Judge has authority under this section to transfer the contested guardianship of the person of a minor only to a court of competent jurisdiction if there is a suit affecting the parent/child relationship (SAPCR). Section 609 attempts to deal with conflicting issues involving the custody or right to custody of a minor. Note, however, that no similar provision is made for a contest of the guardian of an estate. For example, this section is intended to avoid a situation when a person who perceives themselves to be losing a SAPCR to run to probate court and obtain guardianship or attach guardianship jurisdiction before the SAPCR is complete. Section 609 reads as follows:

(a) If an interested person contests an application for the appointment of a guardian of the person of a minor or an interested person seeks




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the removal of a guardian of the person of a minor, the judge, on the judge’s own motion, may transfer all matters relating to the guardianship of the person of the minor to a court of competent jurisdiction in which a suit affecting the parent-child relationship under the Family code is pending. (b) The probate court that transfers a proceeding under this section to a court with proper jurisdiction over suits affecting the parent-child relationship shall send to the court to which the transfer is made the complete files in all matters affecting the guardianship of the person of the minor and certified copies of all entries in the minutes. The transferring court shall keep a copy of the transferred files. If the transferring court retains jurisdiction of the guardianship of the estate of the minor or of another minor who was the subject of the suit, the court shall send a copy of the complete files to the court to which the transfer is made and shall keep the original files. (c) The court to which a transfer is made under this section shall apply the procedural and substantive provisions of the Family Code, including Sections 155.005 and 155.205, in regard to enforcing an order rendered by the court from which the proceeding was transferred.

TEX. PROB. CODE ANN. § 609 (Vernon Supp. 1999). This section grants probate judges the power and discretion to transfer the guardianship of the minor’s person to a court of competent jurisdiction (i.e., family district court). However, the transferring court retains jurisdiction over the minor ward’s estate and even over another minor who may also be the

subject of the suit. The receiving court is required to apply the procedural and substantive provisions of the Family Code, including Sections 155.005 and 155.025 of the Texas Family Code. III. PROCEDURAL ISSUES A. Service of Citation 1. Verify Proper Service Prior to commencing substantive work on a guardianship proceeding, the attorney ad litem and the other parties should verify that the applicant or moving party has met the strict notice and citation requirements. Proper citation of each application is necessary for the court to have jurisdiction to hear the application or cross-application. See Torres v. Ramon, 1999 WL692655; Docket No. 04-98-00888-CV (Tex. App.–San Antonio 1999, no pet. history) (not yet reported). The applicable notice and citation requirements are found in Sections 633 and 875 of the Texas Probate Code. It is important to not simply rely on the pleadings but ask if the persons who are required to be noticed exist. a. Permanent Guardianships Prior to the hearing or trial on permanent guardianships, a number of people must receive personal or other service. Section 633 expressly requires personal service on:

C Proposed wards age twelve years and older;

C The parents of a proposed ward, if their whereabouts are known or can be reasonably ascertained (note that this is not limited to a proposed ward under a certain age);

C Any court-appointed conservator or person in charge of the proposed ward;

C A proposed ward’s spouse; and C The person named in the application to

be appointed guardian. Service may be waived by all persons except the proposed ward. TEX. PROB. CODE ANN. § 633(e) (Vernon Supp. 1999). Additionally, Section 633(d) sets forth a laundry list of persons who must receive notice by certified or registered mail, return receipt


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requested. The 1997 amendments added three new categories. People who now must receive such notice include:

C All the proposed ward’s adult siblings and children;

C The administrator of a nursing home or similar facility where the proposed ward resides;

C The operator of a residential facility where the proposed ward resides;

C Any person that applicant knows to hold a power of attorney executed by the proposed ward;

C Person designated to serve as proposed ward’s guardian in a written declaration pursuant to Section 679 (to the extent the applicant is aware of the existence of the declaration);

C Person designated to serve as a minor’s guardian in the probated will of the minor’s last surviving parent; and

C Person designated to serve as minor’s guardian in a written declaration of the proposed ward’s last surviving parent prior to his or her death (to the extent the applicant knows of the existence of the declaration).

TEX. PROB. CODE ANN. § 633(d) (Vernon Supp. 1999). b. Temporary Guardianships Section 875 sets forth the notice requirements for a temporary guardianship. TEX. PROB. CODE ANN. § 875(e) (Vernon Supp. 1999). Section 875(e) requires the clerk to issue notice and personal citation to the proposed ward and his or her appointed attorney particularly describing the rights of the parties and the time, place, purpose, and possible consequences of a hearing on the Application for Appointment of Temporary Guardian filed by the applicant. Section 875(f)(1) stipulates that the proposed ward has the right to: (i) receive prior notice; (ii) be represented by counsel; (iii) be present; (iv) present evidence and confront and cross-examine witnesses; and (v) request a closed hearing.

Applicant may attempt to allege notice was provided as it was achieved several days after the order was signed. However, this is insufficient to meet the exacting notice requirements of Section 875 which dictate that notice must pre-date the hearing on the appointment of the temporary guardian. Applicant’s noncompliance with the notice requirement at the time of the hearing denies the proposed ward his or her constitutional right of due process embodied in Probate Code Section 875. When the application is filed, the court shall issue an order setting forth the attorney ad litem and date for hearing. Lastly, one should recall Section 877, which expressly states that all provisions relating to guardianships in general also apply to temporary guardianships. A good faith argument can be made, therefore, that Section 633 also applies to temporary guardianships and the applicant must comply with both sections in obtaining proper notice and service. The court may set forth who must be served and may limit it to the ward. c. Application to Amend Temporary to Permanent Guardianship If one amends their application requesting that the temporary guardianship be converted to a permanent guardianship, or requesting a full guardianship after requesting a finding of partial incapacity or asking for someone other than the original applicant to be appointed, no new citation is required. While there is no law on this point, it appears likely that only the original application is jurisdictional. However, to be cautious, the ward should be served to protect the record. See Torres, supra. After initial service, it is also generally believed that the ad litem can answer and protect the ward. d. Failure to Meet Service and Notice Requirements on Guardianships Section 633(f) provides that the court cannot act on an application for guardianship until ten (10) days after the personal service required by Section 633 (c) has been perfected and returned to the court. Further, the court may not act on the application until at least ten (10) days after all the proposed ward’s adult siblings


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and children have been sent notice by certified mail, return receipt requested. If a guardianship is established and citation and notice on these individuals have not been made, the order appointing a guardian may be invalid because the court lacked the requisite jurisdiction to hear the claims. On point is the recent decision of Torres v. Rasson, 1999 WL692655; Docket No. 04-98-00888-CV) Tex. App.–San Antonio 1999, no pet. history) (not yet reported). In Torres, the appellate court held that a trial court lacked jurisdiction to hear a cross-application for guardianship because the cross-application did not perfect personal and other service of his application. The citation of the original application by another party did not grant the court jurisdiction over any cross-applications filed by other person. Id. at fn.1. Accordingly, arrangements for personal service and the requisite certified notices of all pending applications must be made as quickly as possible. If one fails to acquire proof of service, the applicant should put on evidence of their attempts to notify the adult siblings and children by certified mail at the hearing. The applicant has the burden of noticing the other required persons and entities under Section 633(d) by certified notice; however, the applicant’s failure to comply will not affect the validity of a guardianship established by the court. TEX. PROB. CODE ANN. § 633(f) (Vernon Supp. 1999). B. Motions to Show Authority 1. Attorney Purporting to Represent Ward Frequently, in contested guardianships, the applicant is doubtful the person purporting to represent the ward was actually hired by the ward. Often, family members hire an attorney on behalf of the proposed ward to fight the necessity for a guardianship. Consider challenging the authority of the attorney to represent the ward. This is especially effective when the attorney argues the court-appointed attorney ad litem is no longer needed since they were hired by the proposed ward. Some courts are leery to rule on this issue by noting that the attorney does not represent the ward is a statement on capacity.

2. Texas Rule Of Civil Procedure 12 The exclusive tool for challenging the authority of counsel is Rule 12 of the Texas Rules of Civil Procedure. See Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964); Gulf Regional Educ. Television Affiliates v. University of Houston, 746 S.W.2d 803, 809 (Tex. App.–Houston [14th Dist.] 1988, writ denied); Valley Int’l Properties, Inc. v. Brownsville Sav. & Loan Ass’n, 581 S.W.2d 222 (Tex. Civ. App.–Corpus Christi 1979, no writ). A plea in abatement or a motion to dismiss will not suffice. See Fulcher v. Texas State Bd. of Public Accountancy, 571 S.W.2d 366, 372 (Tex. Civ. App.–Corpus Christi 1978, writ ref’d n.r.e.); Cook v. City of Booker, 167 S.W.2d 232, 233 (Tex. Civ. App.–Amarillo 1942, no writ). The relevant section reads as follows:

A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act. The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion. At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears. The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing.

TEX. R. CIV. P. 12 (emphasis added).







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Note the challenged lawyer must be served at least ten (10) days before the hearing on the challenge and has the burden of showing his authority. If the attorney fails to prove his authority to represent the ward, his pleadings will be stricken. This rule has been used to question whether a party has the power or authority to hire an attorney. See Gulf Regional Educ. Television Affiliates v. University of Houston, 746 S.W.2d 803, 809 (Tex. App.–Houston [14th Dist.] 1988, writ denied). An adverse result under a Rule 12 challenge can be costly to a lawyer with no authority – he may not be paid. See, e.g., Breaux v. Allied Bank, 699 S.W.2d 599 (Tex. App.–Houston [14th Dist.] 1985, writ ref’d n.r.e.). At least one attorney has been disbarred for representing an incapacitated person without authority. See State Bar v. Kilpatrick, 874 S.W.2d 656, 657 (Tex. 1994). C. Motion for Security for Costs Consider whether security for the attorney ad litem’s costs should be posted. See TEX. PROB. CODE ANN. § 622 (Vernon Supp. 1999). If the attorney ad litem or other party perceives that either the application or the contest is totally frivolous and/or that when the issue is resolved, the applicant or contestant cannot pay the appointee’s fees, he or she may file a motion for security for costs. When filed, the parties are generally forced to assess their pleadings and decide whether the risk of posting security outweighs the advantages of proceeding. The judge may order the security deposit placed in the registry of the court. D. Right to Request Jury Trial 1. Authority a. Texas Probate Code (1) Section 643 Any party to a contested guardianship proceeding may request a jury trial. TEX. PROB. CODE ANN. § 643 (Vernon Supp. 1999). (2) Section 685 The proposed ward may request a jury trial. TEX. PROB. CODE ANN. § 685 (Vernon Supp. 1999)

(3) Section 21 The right to a jury trial is expressly guaranteed by Section 21, which provides that “[i]n all contested probate and mental illness proceedings in the district court or in the county court or statutory probate court, county court at law or other statutory court exercising probate jurisdiction, the parties shall be entitled to trial by jury as in other civil actions.” TEX. PROB. CODE ANN. § 21 (Vernon Supp. 1999) (emphasis added). Section 21 applies to and governs guardianship proceedings. See TEX. PROB. CODE ANN. § 603 (Vernon Supp. 1999) (to the extent not inconsistent, laws and rules governing probate estates apply to and govern guardianships). b. Texas Constitution The Texas Constitution guarantees the right to a jury trial. Article 5, Section 10 provides:

In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.

TEX. CONST. art. V, § 10. When a proceeding is styled as a “cause,” Article V, Section 10 confers a right to trial by jury. Tolle, 104 S.W. at 1050. The test for what constitutes a “cause” is not based on the nature of the contest, but, merely, whether there is a matter of fact for a jury to decide. Id. (contest over Letters of Administration is cause which warrants right to jury trial); Cockrill v. Cox, 65 Tex. 669 (Tex. App. 1886); Linney v. Peloquin, 35 Tex. 29 (Tex. App. 1872) (will contest is a cause which warrants right to jury trial). The Texas Supreme Court has broadly construed Article V, Section 10 to apply to all causes, both in law and equity. See Tolle v. Tolle, 104 S.W. 1049, 1050 (Tex. 1907); see also Southwestern







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Bell Telephone v. Publ. Util. Comm’n., 571 S.W.2d 503, 517 (Tex. 1978). 2. Types of Guardianship Proceedings Which May Be Tried to Jury a. Permanent Guardianship Pursuant to the above cited authority, a party or proposed ward in a proceeding seeking the appointment of a permanent guardian may request a jury trial. The right to a jury trial may, however, be waived if not timely requested. Therefore, one must be punctual in requesting the jury trial and in paying the jury fee. Practically speaking, it is always risky to deny a late filed jury request. b. Temporary Guardianship There have been many arguments on whether a jury trial may be requested in a temporary guardianship. Section 877 provides that all provisions relating to guardianships of the person and estate also apply to temporary guardianships. However, the case of In re: Kuhler, 60 S.W.3d 381, 382 (Tex. App. – Amarillo 2001) held that no jury trial is allowed due to the interim nature of the temporary guardianship and the use of the word court throughout Section 875. So, at least one court has successfully denied the right to a jury in a temporary. See TEX. PROB. CODE ANN. § 877 (Vernon Supp. 1999). To delay the appointment of a temporary guardian or a confirmation hearing, consider requesting a jury trial. It is likely, however, that a probate judge may give you a quicker setting on the permanent guardianship to avoid two jury trials. The result is more economical than trying a temporary guardianship to a jury, only to retry many of the same issues in the trial on the permanent guardianship application a few months later. Remember, a party is entitled to 45 days notice of the first trial setting. TEX. R. CIV. P. 245. Also avoid trying the contested temporary guardianship until citation has run on the permanent guardianship. It would be costly to have two trials on the same issue. While temporary guardianships focus on a finding of imminent danger, you will be attempting to prove or disprove incapacity in both hearings.

If, however, the party’s medical expert has testified at an earlier affirmation hearing, remember to have his or her testimony transcribed since it may be reused at the permanent hearing. This will reduce expert witness costs. The court can also take judicial notice of the testimony adduced at the hearing on the temporary guardianship. Trimble v. Texas Dept. Of Protec. Service, 981 S.W.2d 211 (Tex. App.–Houston [14th Dist.], no pet.). 3. Issues Which May Be Tried to Jury a. Capacity It is well-established in Texas that the issue of a person’s capacity is an issue of fact for a jury. See Krause v. White, 612 S.W.2d 639, 643 (Tex. App.–Houston [14th Dist.] 1981, writ ref’d n.r.e.) (issue of mental capacity in temporary guardianship tried to jury); In re Guardianship of Dahl, 590 S.W.2d 191, 198 (Tex. App.–Amarillo 1979, writ ref’d n.r.e.) (issue of mental capacity in permanent guardianship tried to jury). b. Suitability to Serve It is also an issue of fact for the jury whether a party is suitable to serve as guardian. See Ulrickson v. Hawkins, 696 S.W.2d 704, 708 (Tex. App.–Fort Worth 1985, writ ref’d n.r.e.). c. Selection Between Suitable Persons If two applicants are qualified to serve as guardian, the issue of who will best serve the needs of the ward may be submitted to a jury. See Chapa v. Hernandez, 587 S.W.2d 778, 781 (Tex. Civ. App.–Corpus Christi 1979, no writ). E. Whether To Request a Jury One of the hardest decisions in a guardianship proceeding is whether to request a jury. Obviously, each counsel’s decision will largely depend on who he or she represents. Without the aid of statistical analysis, a discussion of the various scenarios follows. 1. Issue of Capacity a. Seeking to Prove Incapacity In attempting to prove incapacity, one generally fairs as well or better with the judge than a jury. Statutory Probate Judges are very










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familiar with the test of incapacity and have generally seen the conditions in many forms. They understand the cycle proposed wards go through and are cognizant of the fact that a proposed ward’s mental status has improved because of recent compliance with medication but that they may soon return to the court. b. Seeking to Prove Capacity Conversely, one seeking to prove the proposed ward does not require the appointment of a guardian, should strongly consider requesting a jury trial. Juries are more likely to determine a proposed ward has capacity than the court. Members of the jury often put themselves in the proposed ward’s shoes or relate the proposed ward to a loved one. Further, it forces the party seeking the guardianship to reconsider whether the matter can be resolved without the time and expense of a trial. 2. Right to Serve a. Spouse Spouses are entitled to be appointed guardian of their incapacitated mate unless they are found to be disqualified. If disqualification is not an issue, one will fair as well with a judge because of the priority of the spouse to serve. If, however, a party has alleged that the spouse is disqualified because he or she is unsuitable to serve, perhaps because they are neglectful, cruel, or abusive to the proposed ward, consider requesting a jury. Juries generally respect the marital relationship and are hesitant to find a spouse unsuitable. b. Others If two or more persons are seeking to serve as guardian, one must consider the character, education, transgressions, and appearance of their client in comparison with the other applicant. Consider also the relationship of your client to the proposed ward. If your client is entitled to serve as guardian over the other applicant, and he or she is not disqualified, a jury trial is generally an unnecessary expense. If, however, disqualification is an issue, consider requesting a jury as they may be more lenient than a judge.

3. Jury Questions a. Frequency A jury trial in a guardianship does not occur on a frequent basis. Many times litigants realize they are either (1) spending funds that could be used to take care of the proposed ward; or (2) that the litigants are spending their potential inheritance. However, there are some reported cases of jury trials of guardianship proceedings. The issue of capacity is often one for a jury. Krause v. White, 612 S.W.2d 639 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.) and In re: Guardianship of Dahl, 590 S.W.2d 191 (Tex. App.—Amarillo 1979, writ ref’d n.r.e.). b. Burden of Proof - Permanent Guardianship The burden of proof as to incapacity of the applicant is to find by clear and convincing evidence that (1) the person is incapacitated; (2) it is in the best interest of the proposed ward to have a guardian; and (3) the rights of the proposed ward or proposed ward’s property will be protected by the appointment of a guardian. Texas Probate Code § 684(a); Ulrickson v. Hawkins, 696 S.W.2d 704 (Tex. App.—Ft. Worth 1988, writ ref’d n.r.e.). However, the burden is by a preponderance as to the following: (1) venue; (2) eligibility of the proposed guardian; (3) that a minor is not placed under guardianship to attend a school he or she could otherwise not attend; and (4) the proposed ward is totally incapacitated or partially incapacitated. Texas Probate Code §684(b). The applicant must prove each element by the appropriate standard of either “clear and convincing” or “preponderance of the evidence.” c. Proposed Instructions of Applicant on Capacity As an applicant for permanent guardianship, you may wish to limit the charge to as succinct and simplistic as possible, with few instructions. An instruction that is almost always present is the definition of incapacity. There is only one statutory definition of incapacity, so the applicant will not be able to mold the instruction to suit the situation. The applicant will probably seek the instruction of person and estate in subparts of





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one question rather than two separate jury questions. Thus, if the jury cannot recall specific incapacity issues as to the estate, for example, it will be easier to get a “yes” or a “we do” finding on one question as opposed to two separate questions. d. Proposed Instruction of Contestant or Proposed Ward on Capacity The contestant or proposed ward contesting incapacity will want as many instructions to cloud the issue of incapacity as much as possible. For example, even if a power of attorney for health, finances, or both was executed at or around the time of alleged incapacity, the person contesting will seek a separate question to ask if there is a less restrictive alternative than a guardianship citing. See Texas Probate Code § 602. e. Qualification or Disqualification of a Proposed Guardian In many guardianship contests, there is an allegation of disqualification against contestant and/or applicant. The person seeking guardianship has the burden of proving their qualification by a preponderance of the evidence. The contestant will need to allege and introduce evidence supporting each ground for disqualification in order to get a jury question as to each disqualification allegation. Absent evidence, the ground for disqualification will most likely not be included in the jury questions. f. Applicant’s Instruction on Qualification As to qualification, the applicant will want only the question as to qualification, with most likely no instruction. For example, “Do you find ___________ is qualified to serve as guardian of the person and estate of __________?” Here is where the instruction or preference of the proposed ward would most likely be placed as an instruction. If the preference or designation is helpful, the applicant will want it included. If, by chance, the applicant has been designated as guardian by written document, the applicant may seek an instruction on the prima facie effect of designating applicant as guardian. See Texas Probate Code §679(c).

g. Contestant or Proposed Ward Instruction on Disqualification The contestant or proposed ward will most likely request that each ground of disqualification be listed separately, thus giving a jury more opportunity to examine each ground by which the applicant can disqualified. See Texas Probate Code §681 for grounds for disqualification. Again, if there is a preference expressed or a designation of guardian for someone other than the applicant, the ward or contestant will want such instruction as to preference, and the need to take the preference into consideration. h. Designation of Guardian - Issue in Contest It is unclear how to correctly attack a designation of guardian in the midst of a guardianship contest. Section 679(c) of the Texas Probate Code states that . . . a properly executed and witnessed declaration and declarant affidavit are prima facie evidence that the declarant was competent at the time the declarant executed the declaration and that the guardian named in the declaration would serve the best interests of the ward. So, to uphold the designation, you may seek an instruction that the declarant, since not adjudicated, is presumed to be competent and seek that instruction as prima facie evidence of competency. Also, you want an instruction on the validity of the declaration. If the declaration disqualifies the applicant, you are likewise eager to have the instruction of its validity. Conversely, if you want to attack the declaration, you may request a finding by question as to the capacity of the person to execute the designation (if this is an issue), or you may allege and seek to prove that the person designated to serve is disqualified. You may request a question as to the declaration which should be worded with an instruction, “. . .not be answered if the person named is found to be disqualified.” Currently the issue of a jury question regarding designations, i.e., how to phrase it, how to attack it, and what type of question or instruction you receive, if you receive one at all, is an open issue. Do you ask for and get a jury


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question on the “validity of the declaration” or do you try to get an instruction under the “who should be guardian” question? i. Forms A sample of Applicant and Contestant jury questions are attached as Exhibit B, cumulatively. F. Right to Close Hearing Sections 685 and 875 of the Texas Probate Code provide that the ward or the ward’s attorney may request a closed hearing. Such requests should be timely made and in writing so as to preserve the record. G. Continuances The hearing to confirm the appointment of a temporary guardian may be extended pursuant to an agreement. The ad litem’s consent to the extension is mandatory. TEX. PROB. CODE ANN. § 875(f)(2) (Vernon Supp. 1999). If personal citation has not been delivered to the ward, a continuance is mandated. The continuance can be for the entire period of the temporary guardianship, however, this is not the best practice. H. Temporary Guardianships Pending Contest When a temporary or permanent guardianship is contested, the court may appoint a temporary guardian pending contest on its own motion, or on the motion of another. Temporary guardianships pending contest are governed by Section 875(k) of the Probate Code, which provides:

If an application for a temporary guardianship, for the conversion of a temporary guardianship to a permanent guardianship, or for a permanent guardianship is challenged or contested, the court, on the court’s own motion or on the motion of any interested party, may appoint a new temporary guardian without issuing additional citation if the court finds that the appointment is necessary to protect the proposed

ward or the proposed ward’s estate. A temporary guardian appointed under this subsection must qualify in the same form and manner required of a guardian under this code. The term of the temporary guardianship expires at the conclusion of the hearing challenging or contesting the application or on the date a permanent guardian the court appoints for the proposed ward qualifies to serve as the ward’s guardian.

TEX. PROB. CODE ANN. § 875(k) (Vernon Supp. 1999) (emphasis added). The court must find that the appointment is necessary to protect the ward or his estate, and that there is substantial evidence of incapacity. Id. The presence of imminent danger, however, is not an essential element in this determination. To the extent the court will allow the selection, it is best if the parties agree to a third party to serve pending contest. Such agreement will not be construed by the court as a tacit admission for the necessity of a guardian. The court may however, take judicial notice of arguments made in temporary guardianship proceedings and in any subsequent proceedings. Id.

Form: Attached as Exhibits C and D are sample Motion to Extend Temporary Guardianship Pending Contest Pursuant to Texas Probate Code Section 875(k) and related Order. Form: Attached as Exhibit E is a sample Application for Appointment of Temporary Guardian Pending Contest Pursuant to Texas Probate Code 875(k). IV. MEDICAL AND RELATED EVIDENCE A. Examinations and Reports Unless the proposed ward is a minor, the court must be provided with current medical evidence of the person’s incapacity prior to the appointment of a guardian. It is advisable to obtain a letter or certificate from a doctor licensed in Texas, prior to the filing of the


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guardianship application. This allows the attorney to sign the pleading with a good faith belief that the application is not groundless or frivolous. See TEX. R. CIV. P. 13. A copy of the letter or certificate, stating the doctor’s observations and conclusions, should be attached to the original application or guardianship. The original letter is submitted in evidence to the court at the hearing. The physician’s letter should conclude that the proposed ward is either partially or totally incapacitated and generally describe the tasks they are no longer capable of performing. The examination, giving rise to the diagnosis and the creation of resulting letter or certificate, must occur within 120 days of the filing of the application. TEX. PROB. CODE ANN. § 687(a) (Vernon Supp. 1999); see Trimble, supra. (admission and reliance on doctor’s letter dated more than 120 days before application not reversible error). If the proposed ward’s incapacity is based on mental retardation, he should be examined by a physician or psychologist licensed in Texas or certified by the Texas Department of Mental Health and Mental Retardation to perform such examinations. Otherwise, documentation must be filed with the court that shows the proposed ward has been examined according to the rules adopted by the Texas Department of Mental Health and Mental Retardation not more than six (6) months prior to the date of the hearing. The examining doctor must submit his or her written findings and recommendations to the court. Only with mental retardation can incapacity be determined by a psychologist and not a physician. Unless successfully excluded, the physician’s letter will be offered and admitted as evidence of the proposed ward’s incapacity to the court. In many cases, this alone may deem to be sufficient medical evidence to establish a guardianship. When capacity is an issue, however, the attorney ad litem or contestant will likely object (and should) to the letter on the basis of hearsay. See the discussion of hearsay at VII. B, infra. If the potential for a contest exists as to the issue of incapacity, the applicant for guardianship should retain a psychiatrist or neurologist with court experience to examine

and report on the proposed ward, and to testify as to the proposed ward’s incapacity, or capacity. It may be necessary to seek a court ordered examination by a physician to obtain an independent evaluation of the proposed ward. TEX. PROB. CODE ANN. § 687 (Vernon Supp. 1999). When the proposed ward is uncooperative, this is often the most effective means to obtain the required medical. It is also a means for the ad litem to obtain a second opinion. If an independent medical exam is sought, an application should be filed with the court setting out the requested scope of the examination and any requested limitations. If the exam is requested by someone other than the attorney ad litem, it is advisable to request that the court direct the court appointed physician to release a copy of the doctor’s report to the requesting party. Form: Attached as Exhibits F and G are a sample Motion for Independent Medical Examination and related Order. B. Confidentiality of Medical Information 1. Texas Rules of Civil Evidence a. Doctor/Patient Privilege (1) General Rule Communications between an individual and his or her physician are privileged and may not be disclosed by the physician without the patient’s consent. TEX. R. EVID. 509 (b)(1). Further, a patient’s records, including any diagnosis, evaluation or treatment, are confidential and may not be disclosed without proper consent. TEX. R. EVID. 509 (b)(2). (2) Waiver of Privilege The privilege may be waived by the patient or any representative of the patient. TEX. R. EVID. 509 (f)(1). Consent must be in writing and signed by the patient or his or her representative. An authorized representative may include the patient’s guardian or attorney ad litem in the guardianship hearing. TEX. R. EVID. 509 (f) (Note, however, the Rule refers to Chapter V instead of Chapter XIII of the Texas Probate Code.)


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b. Confidentiality of Mental Health Information (1) General Rule All communications, including all records, between an individual and their physician or other professional related to a patient’s mental health, are privileged, unless the patient or the patient’s authorized representative waives the privilege. TEX. R. EVID. 510(b). Further, Section 576.005 of the Health and Safety Code was recently amended to provide that “[r]ecords of a mental health facility that directly or indirectly identify a present, former, or proposed patient are confidential unless disclosure is permitted by other state law.” TEX. HEALTH & SAFETY CODE ANN. § 576.005 (Vernon Supp. 1999). (2) Waiver of Privilege The privilege may be waived by the patient or any representative of the patient. TEX. R. EVID. 510 (d)(2). The consent must be in writing and may be signed by the patient or the patient’s representative. A representative may include any person bearing the written consent of the patient, or the patient’s guardian. Id. c. Authorized Disclosure (1) Guardianship Miranda Warning Rule 510(d)(4) allows physicians and other mental health professionals to disclose the proposed ward’s medical information provided the professional informs the proposed ward that anything he or she might say to them would not be privileged and, thus, “can and will be held against him.” TEX. R. EVID. 510 (d)(4). Specifically, Rule 510(d)(4) provides that:

(4) when the judge finds that the patient after having been previously informed that communications would not be privileged, has made communications to a professional in the course of a court-ordered examination relating to the patient’s mental or emotional condition or disorder, providing that such communications shall not be privileged only with respect to

issues involving the patient’s mental or emotional health. On granting of the order, the court, in determining the extent to which any disclosure or all or any part of any communication is necessary, shall impose appropriate safeguards against unauthorized disclosure;

This disclosure is necessary even if the exam is court ordered. See Subia v. Texas Dept. of Human Servs., 750 S.W.2d 827, 830-31 (Tex. App.–El Paso 1988, no writ). (2) Prepare Medical Experts In Advance If a medical doctor or expert fails to give the required disclosure, the expert’s entire testimony will generally be excluded. Accordingly, experts should be sufficiently warned of these requirements prior to evaluating the ward. Furthermore, it is advisable to include a statement in the doctor’s letter or medical report confirming that the expert gave the proposed ward the required disclosure and, if possible, that the proposed ward consented to the release of information in writing. d. Options if Guardianship Miranda Not Given To secure the admissibility of the testimony of an expert where proper warning was not given, argue that Subia, supra, is a mental commitment case depriving a person of their liberty by placing them in a locked facility and thus, is inapplicable to a guardianship proceeding. Further, since mental commitment files are sealed and guardianship files are public record, it makes sense that the warning would not be required in guardianships. Where one has an existing temporary guardianship of the person or is an acting agent-in-fact, arguably that person or entity could waive the privilege under Rule 510 of the Texas Rules of Evidence, as discussed in IV. B.1.b, supra. It is customary when contesting medical testimony to take the opposing witness on voir dire prior to being questioned to any extent on the actual examination to determine if the disclosure was made and the privilege was



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waived. If not, move to strike further testimony of the witness. C. Confidentiality of State and County Agency Reports 1. Human Resources Code Section 48.101 a. General Rule: Not Discoverable Certain agencies, such as Adult Protective Services or Child Protective Services may have information relevant to the issue of an applicant’s eligibility to serve or contest a guardianship proceeding. There was, however, confidentiality requirements with respect to those records of state and county agencies. Section 48.101 of the Human Resources Code deems the following information confidential and not subject to disclosure:

A report of abuse, neglect, or exploitation made under Human Resource Code, Chapter 48; The identity of the person making the report; All files, reports, records, communications, and working papers used or developed in an investigation made under, or relating to, services provided pursuant to Human Resource Code, Chapter 48.

TEX. HUM. RES. CODE ANN. § 48.101(a) (Vernon Supp. 1999). b. Exception Courts may order disclosure of the confidential information in certain situations. Section 48.101 allows a court, including a court where a guardianship is pending, to direct the release of the records if it determines their disclosure is essential to the administration of justice and will not endanger the life or safety of any individual who (i) is the subject of a report of abuse, neglect, or exploitation; (ii) makes a report of abuse, neglect, or exploitation; or (iii) participates in an investigation of reported abuse, neglect, or exploitation. TEX. HUM. RES. CODE ANN. § 48.101(c) (Vernon Supp. 1999).

If it appears the disclosure of a report may be relevant to a disputed issue in a guardianship, the party seeking it must prepare and file a motion with the court requesting its release and a hearing on the motion. The movant must give the department or investigating state agency and each interested party notice of the motion and hearing. After the hearing and an in camera review of the information, the court may direct the release of the report if it determines the disclosure is (i) essential to the administration of justice, and (ii) will not endanger the individual discussed above. Procurement of the agency reports will be delayed several weeks by the notice and filing requirements. Accordingly, an application for their disclosure should be filed prior to the guardianship hearing to ensure sufficient time exists to receive and review them. V. ASSEMBLING AND PREPARING WITNESSES A. Experts 1. Retain Qualified Experts Hiring a psychiatrist or neurologist who has experience proving up capacity, or lack thereof, in guardianship proceedings is of great importance. They will be familiar with the legal test for capacity. A good approach to selecting an expert who has the judge’s respect and the requisite level of expertise in the areas of capacity and mental examinations, is to ascertain and hire the physician the judge appoints on independent psychiatric exams. Regardless of who is selected he or she should be board certified, if possible, and have adequate credentials. Most judges will be leery about dismissing an application for guardianship with no medical testimony. If one chooses not to employ a physician, he should consider hiring an alternative expert. A non-exclusive list of these include social workers, nurses, and medical or home care attendants. 2. Qualifying an Expert Rule 702 of the Texas Rules of Evidence, which governs testifying experts, provides:

“If scientific, technical, or other specialized knowledge will assist


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the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

TEX. R. EVID. 702. 3. Questions for the Expert on Incapacity One should be prepared with questions to propound to their expert to prove or disprove their case. The following is a list of sample questions to be directed to the physician witness in a contested guardianship proceeding:

(1) State your full name for the Court. (2) How are you employed? (3) Are you licensed to practice medicine

in the State of Texas? (4) Is your license on file with the

appropriate authority in this County? (5) What is your professional address? (6) What medical school did you attend? (7) Where did you do your internship

and residency? (8) Are you a member of any

professional associations? (9) Are you associated with any

hospitals? (10) Have you brought your Curriculum

Vitae with you? (11) Is it true, correct, and accurate in

every respect? (12) Are you Board Certified? (13) When did you obtain your board

certification? (14) In what areas are you board certified? (15) In the field of psychiatry, do you treat

patients who, because of a physical or mental condition are substantially unable to provide, food, clothing, or shelter for themselves, or to care for their own health or financial affairs?

(16) Do you know (proposed ward)? (17) When did you have an occasion to

treat the proposed ward? (Question the expert as to each meeting.)

(18) Did you disclose to the proposed ward that you would be testifying as to his capacity?

(19) Did the proposed ward waive the disclosure of the examination in writing?

(20) Was the examination less that 120 days prior to the guardianship application?

(21) Did you examine the proposed ward? (22) What did the exam consist of? (23) What type of tests were

administered? (24) What were the results of the

examination? (25) What was the diagnosis? (26) Did you consult with any other

physician in this matter? (27) Do you have an opinion on whether

the proposed ward is able to be present in the courtroom for a hearing?

(28) Is the proposed ward on medication and, if so, please describe the type of medication and dosage?

(29) Based on reasonable medical probability, do you have any opinion about whether the proposed ward is incapacitated?

(30) What is your opinion? (31) Do you recommend the appointment

of a legal guardian for the proposed ward?

(32) Have you ever treated the proposed guardian for any psychiatric problems?

(33) Based on reasonable medical probability, do you have an opinion whether the proposed ward is totally incapacitated/partially incapacitated?

(34) Based on reasonable medical probability, do you believe in the future that the proposed ward’s diagnosis is likely to improve or change?

(35) If partially incapacitated, (go through check list of what proposed ward is incapable of)?


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These questions by no means represent an exhaustive list. B. Lay Witnesses 1. Generally In jury trials, lay witnesses who are personally acquainted with the proposed ward are among the most influential. They are permitted to testify about the proposed ward’s actions, conduct and demeanor. Their testimony is often more credible than that of expert witnesses who the jury may believe has something to gain or lose. When non-experts give an opinion as to mental capacity, they must state facts upon which their opinion is based. See Reynolds v. Park, 485 S.W.2d 807 (Tex. Civ. App.–Amarillo 1972, writ ref’d n.r.e.); Ellington v. Ellington, 443 S.W.2d 50 (Tex. Civ. App.–Tyler 1969, writ ref’d n.r.e.). If the witness states that he believes the proposed ward is of unsound mind, he must divulge detailed facts upon which he bases his conclusion. Conversely, if he concludes the proposed ward is of sound mind, he may provide relatively little detail. See Williford v. Masten, 521 S.W.2d 878 (Tex. Civ. App.–Amarillo 1975, writ ref’d n.r.e.); Hamill v. Brashear, 513 S.W.2d 602 (Tex. Civ. App.– Amarillo 1974, writ ref’d n.r.e.); Moeling v. Russell, 483 S.W.2d 21 (Tex. Civ. App.–Tyler 1972, no writ). 2. Potential Witnesses Potential witnesses may include:

C Friends, acquaintances, and any person who has had business dealings with the proposed ward;

C Maid or housekeeper; C Hairdressers; C Veterinarian; C Bank Teller or Banker; C Accountant, bookkeeper, etc.; C Minister, Preacher, Priest, Rabbi, etc.;

and C Members of social groups.

C. Court Investigator’s Report On the filing of an application for guardianship under Section 682 of the Probate Code, a court investigator is obligated to

investigate the circumstances alleged to determine whether a less restrictive alternative is appropriate. TEX. PROB. CODE ANN. § 648A(a) (Vernon Supp. 1999). The court investigator’s role does not supersede any statutory duty or obligation of another to report or investigate abuse or neglect under any statute of this state. The investigators typically complete and file a report on their findings. In contested cases, the investigator must furnish the party’s attorneys with a copy of his report by the earlier of (i) seven days after the day it is completed, or (ii) ten days before the day the trial is scheduled to begin. Most court investigators appreciate receiving relevant telephone numbers and contact addresses from the applicant to assist in their investigation. The sooner they receive this information, the sooner they can complete their report. VI. CONSIDERATIONS IN PREPARING FOR THE HEARING A. Address Any Physical Problems of Proposed Ward Sometimes proposed wards have physical problems, such as vitamin B deficiencies which cause confusion, cataracts, hearing loss, loss of teeth, etc. Do not overlook the report from the physical exam. If one has not been done recently, try to get the proposed ward to submit to a complete physical. It may reveal the underlying causes of the dementia, and yield clues as to how it might be controlled and combated. B. Discovery Discovery is an effective tool to determine another party’s motivations in seeking or contesting a guardianship. It also allows one to ascertain whether such party has an adverse interest to the proposed ward which would disqualify him or her from seeking or contesting the guardianship. It is important to follow the new discovery rules enacted effective January 1, 1999. Thus, a party should promptly send his or her request for disclosure and follow-up with other discovery that does not exceed the new limitations. Use the discovery means to investigate a party’s standing, any adverse interests, any









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disqualifications and opposition to other party’s entitlement or qualifications. When defending against a guardianship, attempt to determine whether the proponent has recently engaged in personal or business transactions which tacitly admit the proposed ward has capacity. Such transactions may include accepting a check signed by the proposed ward or acting under a power of attorney recently executed by the proposed ward. Finally, if any party is actively asserting that the proposed ward has capacity and you disagree, notice the proposed ward’s deposition. Form: Attached as Exhibit H is a sample Request for Disclosures. Form: Attached as Exhibit I is a sample of a First Set of Interrogatories, Request for Production and Admissions which may be used by a contestant of the guardianship. Form: Attached as Exhibit J is a sample First Set of Interrogatories and Request for Production and Admissions which may be used by a proponent of the guardianship. C. Proposed Ward’s Appearance Discuss courtroom attire with the proposed ward prior to the hearing. An unfavorable impression is likely made on a judge when the proposed ward comes to court in a bathrobe, house shoes or other inappropriate attire. If the individual has been in a hospital, attire will likely be a problem. Nonetheless, a clean shaven, well-dressed individual makes a better impression. Be certain the proposed ward’s fingernails and toenails have been groomed. Bathing and cleanliness is always a plus. As discussed previously, one should also determine whether the proposed ward needs a hearing aid or eyeglasses. An elderly person may appear incapacitated, when their true problem is hearing or sight related. D. Getting Proposed Ward to Courthouse If possible, the proposed ward should drive himself, take a taxi, or ride the bus to the courthouse. It will create a favorable impression when he is asked on the stand if he arrived at the

courthouse by himself, or if he was able to find the court by himself. Note, this can backfire if the proposed ward loses his way or has a car accident. Also remember, if the proposed ward was the subject of a temporary guardianship, his driver’s license may have been revoked, so he may not drive. E. Consider Medications The test for capacity occurs on the day of the hearing. If the proposed ward is on medication now and has returned to normal behavior, don’t miss the opportunity to point this out to the court. Ask the doctor about the ward’s capacity today. Ask the proposed ward to name the medications and dosages. Also, a supervised living environment will sometimes resolve the medication problem. If the proposed ward can be supervised and stay on medication, the fact finder may be persuaded that this can be accomplished without a guardianship. F. Money Management Since guardianships often deal with the ability to handle financial affairs, consider having the proposed ward count change on the witness stand. The proposed ward bringing his checkbook register, if one exists, could prove his ability to keep records. If he filed an income tax return, have him bring it to court to show he was taking care of business. Sometimes you can ask the proposed ward to count money. G. Plea to the Judge If the proposed ward is elderly, suggest to him that he or she tell the Judge how he feels about the guardianship proceeding. Judges are moved more by what the proposed ward has to say than what their lawyers do. Many times the proposed ward will give a cogent plea to live without the burden of a guardianship. H. Ward’s Presence in Courtroom Section 685 of the Probate Code requires the proposed ward’s presence in the courtroom at the hearing. If he does not attend, the court must make a finding of why his presence was “not necessary” on the record or may enter its determination in the order. TEX. PROB. CODE ANN. § 685 (Vernon Supp. 1999). Generally,


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the duty to bring the proposed ward to the courtroom or to explain his non-appearance rests with the attorney ad litem. Several methods may be utilized to prove why his presence at the hearing would not be in his best interest. Some examples include:

(a) Incorporate into the doctor’s letter the medical reason the proposed ward’s presence would be inappropriate or harmful;

(b) Prepare a written statement by the ad litem for his client to sign expressing his desire not to appear;

(c) Tape record (with permission) the proposed ward’s statement to the court;

(d) Arrange for a telephonic appearance if the proposed ward is physically unable to attend and the court will allow it;

(e) The ad litem testifying as to the proposed ward’s lack of desire or ability to attend.

I. Preference of Ward Probate Code Section 689 compels the court to make a reasonable effort to consider the incapacitated person’s preference as to the selection of his or her guardian. It further mandates due consideration of the preference indicated unless inconsistent with other provisions of the chapter. This preference may be communicated through the attorney ad litem’s answer, through the proposed ward’s testimony (in open court or via deposition testimony), or by written designation. The statute does not indicate whether a previous designation of guardian in the event of later incapacity overrides a current designation or preference. VII. CONSIDERATIONS DURING HEARING A. Burden of Proof The burden of proof in a contested matter is on the person alleging the incapacity. TEX. PROB. CODE ANN. § 684(c) (Vernon Supp. 1999); see Ulrickson v. Hawkins, 696 S.W.2d 704 (Tex. App.–Fort Worth 1985, writ ref’d n.r.e.).

B. Raising Hearsay Objection as to Doctor’s Letter Is it appropriate to allow hearsay of medical professionals without subjecting the professional to cross-examination? Generally, yes, when the doctor’s testimony is not truly controverted. This is commonly done by not objecting to the admission of the doctor letter. Some courts, however, require that the physician sign an affidavit swearing to the accuracy of the doctor’s letter. The use of hearsay evidence in the form of affidavits is frequently allowed in lieu of direct testimony. However, at least one out-of-state court has held that an incapacity determination leading to a guardianship could not be based on a physician’s affidavit even where all parties agreed to its admission. In re Von Bulow, 470 N.Y.2d 72 (Sup. Ct. 1983). The court stated:

Although an affidavit setting out Mrs. Von Bulow’s physician’s conclusions on the question of her competency was attached to the petition, this only served to make it ‘presumptively appear, to the satisfaction of the court’ that Mrs. Von Bulow is incompetent and that a committee should be appointed. This, however, merely prevents a summary dismissal of the petition. It cannot be the sole basis for a determination of incompetency. It may be that this is an extreme case, one which might justify summary disposition if any case can. Yet the court is mindful that, in the average incompetency proceeding, the alleged incompetent is not, as here, a person in an apparently permanent vegetative state. Rather, the subject of such proceeding is commonly merely aged or eccentric, and the issue of competency is not clear. This court is reluctant to approve a procedure for summary declaration of incompetency which could engender collusion and the schemes warned




22

of in Ginnel. Balanced against the potential for abuse, the expenditure of time and money caused here by a rule requiring a hearing in all cases seems minimal. The parties will therefore present to the court live medical testimony on the issue of Mrs. Von Bulow’s competence at a hearing to be scheduled.

Id. at 74 (emphasis added). No probate judge will summarily deem a ward incapacitated. Attorney ad litems are always contestants in guardianship proceedings. Their general denial puts the applicant to a clear and convincing burden on the issue of incapacity. Accordingly, they can still do their job of defending even without objecting to the physician’s report or letter on the basis of hearsay. C. Dead Man’s Statute The “Dead Man’s Statute” applies to incapacitated individuals. Texas Rules of Evidence, Rule 601 provides:

(a) Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules:

(1) Insane Persons. Insane persons who, in the opinion of the Court, are in the insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the Court, were in that condition when the events happened of which they are called to testify.

(2) Children. Children or other persons who, after being examined by the court, appear not to possess sufficient

intellect to relate transactions with respect to which they are interrogated.

(b) In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof.

TEX. R. EVID. 601. Note that under Rule 601(b), most “transactions” with the proposed ward or ward can be admitted. Additionally, Texas courts follow the modern line of cases from other jurisdictions holding that corroborating evidence need not be sufficient standing alone to support the verdict, but must tend to confirm and strengthen the testimony of the witness and show the probability of its truth. See Quitta v. Fossati, 808 S.W.2d 636 (Tex. App.–Corpus Christi 1991, writ denied); Powers v. McDaniel, 785 S.W.2d 915 (Tex. App.–San Antonio 1990, writ denied); Parham v. Wilborn, 746 S.W.2d 347 (Tex. App.–Fort Worth 1988, no writ); Bobbitt v. Bass, 713 S.W.2d 217 (Tex. App.–El Paso 1986, writ dism’d).







23

D. Findings Required by the Court Note that in all guardianship proceedings, two standards of proof are employed. Section 684 of the Probate Code lists requisite findings and the applicable standards. 1. Clear and Convincing Prior to appointing a guardian, the court must find the following clear and convincing evidence:

C The proposed ward is incapacitated. The incapacity of an adult proposed ward must be evidenced by reoccurring occurrences or acts within the preceding six (6) months and not by a single instance of negligence or bad judgment;

C It is in the best interest of the proposed ward to have a guardian;

C The rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.

TEX. PROB. CODE ANN. § 685(a) (Vernon Supp. 1999). Clear and convincing evidence means “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Trimble v. Texas Dept. Of Protec. Service, 977 at 211. This standard falls between the preponderance of evidence standard in civil proceedings and the reasonable doubt standard in criminal proceedings. Id. 2. Preponderance Before appointing a guardian, the court must find the following by a preponderance of the evidence:

C The court has venue; C The person to be appointed guardian is

eligible to act as guardian and is entitled to appointment, or, if no eligible person is entitled to be appointed applies, the person appointed is a proper person to act as guardian;

C If a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which the minor is not otherwise eligible for enrollment; and

C The proposed ward is totally without capacity as provided by this code to care for himself or herself and to manage the individual’s property, or the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage the individual’s property.

TEX. PROB. CODE ANN. § 684(b) (Vernon Supp. 1999). E. Order Appointing Guardian Under Section 693(c) of the Probate Code, the court’s order must include the following:

C Name of the person appointed guardian; C Name of the ward; C State whether the guardian is of the

person or the estate or both; C The bond required, if any. See Doyle v.

Sorrells, 297 S.W.2d 233, 235 (Tex. Civ. App.–San Antonio 1956, writ ref’d n.r.e.) (reversing order of trial court for failing to provide for a bond); see also, Rodriguez v. Gonzalez, 830 S.W.2d 799 (Tex. App.–Corpus Christi 1992, no writ) (reversing order of trial court because amount of bond was inadequate);

C If the guardianship is of the estate and the court deems an appraisal is necessary, the name of the appraiser; and

C Statement that the clerk will issue letters of guardianship to the person appointed when the person has qualified according to law.

See TEX. PROB. CODE ANN. § 693 (Vernon Supp. 1999). The order should also include specific findings of facts. For example, the order should include explicit statements addressing each finding required by Section 684, and the




24

standard of proof applied by the court. Trimble, supra. VIII. ATTORNEYS’ FEES A. General Rule Reasonable and necessary attorneys’ fees may be charged against the ward’s estate; or, if the estate is insufficient, they may be charged to the county under Section 665A of the Probate Code. See Nelkin v. Panzer, 833 S.W.2d 267, 269 (Tex. App.–Houston [1st Dist.] 1992, writ dism’d w.o.j.). Section 665B of the Texas Probate Code states:

(a) A court that creates a guardianship for a ward under this chapter, on request of a person who filed an application to be appointed guardian of the proposed ward, may authorize compensation of an attorney who represents the person at the application hearing, regardless of whether the person is appointed the ward’s guardian, from: (1) available funds of the estate; or (2) the county treasury if: (A) the ward’s estate is insufficient to pay for the services provided by the attorney; and (B) funds in the county treasury are budgeted for that purpose. (b) The court may not authorize compensation under this section unless the court finds that the applicant acted in good faith and for just cause in the filing and prosecution of the application.

TEX. PROB. CODE ANN. § 665B (Vernon Supp. 1999) (emphasis added). Further, a private attorney who defends the proposed ward in the guardianship proceeding may also seek payment of attorneys’ fees and expenses from the ward’s estate. Oldham v. Calderon, et al. LEXIS 1539 (Tex. App.–Houston [14th Dist.] 1998, n.w.h.) (currently unpublished)

B. Plead Good Faith and Just Cause It is advisable to include a plea of good faith and just cause in the party’s application to appoint a guardian to avoid claims that such party failed to plead for their fees. This is true regardless of whether you believe the guardianship will be hotly contested. The following is an example of appropriate language to use:

Applicant brings this Application for the appointment as Temporary Guardian of the person and estate in good faith and for just cause. Applicant, therefore, respectfully requests the Court find that she and her attorneys acted in good faith and for just cause in matters relating to this Application, the hearing thereon, and the establishment of the requested temporary/permanent guardianship be approved and that her attorneys’ fees and expenses be paid out of proposed ward’s estate.

C. Form of Request Fees may be requested by application or by filing a claim. When the issue is tried to the court or a jury, the issue should be submitted or it may be waived. D. Objections to Fees While no attorney likes to object to another attorney’s fees and expenses, it is sometimes necessary to do so in the course of his or her representation of his or her client. Although there is no prescribed procedure, objections should be made in a written pleading filed with the court. In certain circumstances, a jury trial should be requested. Form: Attached as Exhibit K is a sample Objection to Application for Payment of Appointee Fees and Request for Jury Trial. IX. MEDIATION AND ADR A. General Overview Alternative dispute resolution (“ADR”) is not a single method for settlement as many people believe, rather, it includes several



25

techniques including negotiation, mediation, arbitration, case evaluation techniques, and private judging. Although the methods vary, all affiliate neutral third party who provides assistance and facilitates settlement. The most common form of ADR used in guardianship proceedings is mediation. Mediation is a facilitated negotiation process. The term “mediation” is derived from the Latin term “mediare” which means to be in the middle. A mediator is a neutral third party who does not force a settlement but, rather, facilitates communication between the parties, assists the parties by focusing on the real issues and generates options for settlement. Kimberlee K. Kovach, ADR - DOES IT WORK? SOUTH TEXAS COLLEGE OF LAW, Advanced Civil Litigation Institute (1989). Note that the Texas Lawyer’s Creed requires attorneys to advise their clients of the availability of alternative ways to resolve disputes, such as mediation. Mediation may be voluntary or court-ordered. In a voluntary mediation, the litigants and their attorneys simply choose the mediator and date, and attend. In some cases, one party applies to the court to order the case to mediation and appoint a mediator. Section 152.003, et seq., of the Texas Civil Practice and Remedies Code provides authority for referring a case to alternative dispute resolution. In particular, Section 152.001 provides that:

A judge of a district court, county court, statutory county court, probate court, or justice of the peace court in a county in which an alternative dispute resolution system has been established may, on motion of a party, refer a case to the system. Referral under this section does not prejudice the case.

TEX. CIV. PRAC. & REM. CODE ANN. § 152.003 (Vernon Supp. 1999). Any party may object to the referral of a case to mediation. If the court determines there is a reasonable basis for the objection, it may not refer the dispute. See TEX. CIV. PRAC. & REM. CODE ANN. § 154.022 (Vernon Supp. 1999).

Form: Attached as Exhibits L and M are sample forms of a Motion for Mediation and related Order. B. Reasons to Mediate Numerous reasons exist to mediate pending litigation in general. However, in contested guardianships, mediation can be an especially beneficial vehicle. It tends to minimize both the financial and emotional costs of this type of litigation, an invaluable tool. The most common benefits include: 1. Preserving the Proposed Ward’s Rights Attorney ad litems of individuals with marginal capacity should be cognizant of the fact that their client, the proposed ward, faces possible disaster in the courtroom. Under such circumstances, mediation may be a useful vehicle for preserving their client’s rights in a dignified manner. Remember, until the proposed ward is adjudicated incapacitated, he or she is presumed to have capacity. An agreement may be reached allowing the proposed ward to establish a management trust to manage his or her assets, potentially, avoiding a guardianship of at least the estate. Ad litems may also be able to reach an agreement allowing them to continue utilizing a power of attorney – an action that may otherwise be questioned. For example, the use of the power of attorney may be limited by the settlement agreement. 2. Avoiding the Cost of Litigation Litigating guardianships can cost tens of thousands of dollars. Since both the successful and unsuccessful parties may seek the payment of their fees from the proposed ward’s estate, this can be a devastating cost, affecting the resources available to the ward and, thus, the value of his or her estate at death. 3. Preserving Family Relationships The only disputed issue in most contested guardianships is who should serve as guardian. A lifetime of resentment between children may be the root of the contest. Mediation may be a means to avoid completely severing the family relationship and to reduce the stress on the


26

proposed ward as each side postures to obtain his preference to serve. 4. Bridge for Communications Unfortunately, a “rambo” litigator, or counsel’s inability to communicate effectively because of their dislike for each other, may be an impediment to informal settlement discussions. In these cases, mediation may provide the necessary intermediary allowing meaningful settlement discussions. C. Getting to Mediation If the parties agree to mediate voluntarily, they should execute a Rule 11 Agreement or an Agreement to Mediate. These agreements should confirm the date, place, time, cost, and the name of the mediator. They should also confirm who will be present and, who may attend as their representative with authority to enter into settlement, if they are unable to attend. Form: Attached as Exhibit N is a sample Agreement to Mediate. Once the mediation is scheduled, the mediator generally will send each party a confirmation and request for information. Unless requested in a specific form, most attorneys submit general information about the parties and a brief summary of (i) agreed and disputed facts, (ii) disputed issues of law, and (iii) any prior settlement offers. Form: Attached as Exhibit O is a sample confidential mediation statement form. Before incurring the time and expenses to prepare and attend mediation, it is important to verify that all parties necessary to achieve settlement will be present. For example, if a party is unable to attend and plans to send a representative, i.e., under a power of attorney, the power of attorney should be presented to the other parties prior to the mediation to avoid issues of invalid authority at the mediation. Finally, one should prepare their opening statement so the other side will have an overview of their cases in a non-threatening manner, informing them of what to expect if

settlement is not reached. Mediators often instruct the parties to only listen to the other sides opening statement, and to ignore their own. D. Ethical Issues in Mediation 1. Good Faith One of the pressing ethical issues affecting probate and guardianship practice is compelled by mediation. As previously discussed, a court may order a pending dispute to mediation pursuant to Section 152.003 of the Texas Civil Practice and Remedies Code. Although mediation is a growing practice, little attention has been focused on the role of the “lawyer” advocate. See generally Kimberlee K. Kovach, GOOD FAITH IN MEDIATION - REQUESTED, RECOMMENDED, OR REQUIRED? A NEW ETHIC, 38 S. TEX. L. REV. 575 (1997) (arguing for good faith requirement in mediation). A troubling aspect of compelled mediation is the lack of a statutory “good faith” requirement on the parties. Without such a requirement, mediation becomes nothing more than another “procedural hoop” to jump through on the way to trial. See Kovach, supra at 581. In Texas, case law suggests there is no requirement that the parties mediate in good faith in compelled mediation. In Decker v. Lindsey, the Houston First Court of Appeals held that while a court may order parties to mediation, it does not have authority to force them to mediate in good faith. Decker v. Lindsey, 824 S.W.2d 247 (Tex. App.–Houston [1st Dist.] 1992, no writ). One way to ensure the parties will mediate in good faith is by incorporating a statement in the Rule 11 Agreement that says all parties will be present and participate in the mediation in good faith. 2. Maintaining Client Confidences Under Rule 1.05 of the Texas Rules of Professional Conduct, attorneys have a duty of confidentiality to their clients. However, the mediation format encourages the disclosure of otherwise confidential information. The opposing parties may reveal information to the other party in the hopes of reaching a settlement. It has been argued that under traditional evidentiary rules, discussions in furtherance of



27

settlement are inadmissable at trial. One should not rely on this belief alone. It is important to use caution in revealing confidential information during mediation process. While one may attempt to enter into a Rule 11 or other contractual agreement to alleviate concerns about revealing such information, other statutes may trump these agreements. For example, the statutes requiring disclosure of child or elder abuse. See Carrie Menkel-Meadow, ETHICS IN ALTERNATIVE DISPUTE RESOLUTIONS: NEW ISSUES, NO ANSWERS FROM THE ADVERSARY CONCEPTION OF LAWYER’S RESPONSIBILITIES, 38 S. TEX. L. REV. 407, 441-43 (1997). In Texas, this problem is somewhat alleviated by the Texas ADR Act set forth at Title 7 of the Texas Civil Practice and Remedies Code. Specifically, Section 154.073 provides that communications relating to a pending civil or criminal dispute by a party to an alternative dispute resolution procedure are confidential, not subject to disclosure and may not be used as evidence against the participant in any proceeding. See TEX. CIV. PRAC. & REM. CODE ANN. § 154.073(a) (Vernon Supp. 1999). This has been construed to cover not only the parties “communications,” but also their demeanor. However, any oral communication or written material used in an alternative dispute resolution is admissible or discoverable if it is admissible or discoverable independent of the alternative dispute resolution proceeding. TEX. CIV. PRAC. & REM. CODE ANN. § 154.073(d) (Vernon Supp. 1999). Form: Attached as Exhibit P is a sample “Rules of Mediation,” which could be incorporated into a Rule 11 Agreement to address good faith, confidentiality, and other concerns. E. Settlement in Mediation If one is successful in mediation, it is important to remember that settlement agreements involving guardianships may be subject to court approval. Section 774(a) of the Probate Code requires such approval. Failure to obtain it causes the agreement to become voidable.

Oral agreements are frequently reached late in the evening when the parties and their attorneys are exhausted. Fear that the opposing party may renege if given a night to “sleep on it” often results in a hastily prepared written agreement being produced that evening. One way to reduce the chance for error is to create and follow a checklist of items that should be addressed in the Rule 11 or Family Settlement. The following is a basic checklist for settlement of a guardianship contest: A. Parties • State all names • State all relevant capacities • Define appropriately • State any ad litems joining as parties B. Recitals • Identify guardianship matters at issue • State facts giving rise to contest or dispute • State facts evidencing each settling party’s

standing • Identify pending legal action, including

court, style of case, etc. • State settlement to avoid continued litigation

and buy peace C. Definitions and scope • Define claims • Define any released entities and persons

included in settlement, i.e. other trusts, partnerships, businesses, etc.

• State what claims or matters, if any, are excluded from agreement

• Define relevant terms – including successor, affiliates, predecessors, litigation, transactions, etc.

D. Recite consideration • Good and valuable E. Appointment of guardian • General issues

⇒ Will guardian be appointed – person and/or estate

⇒ If not, ward competent or less restrictive means

⇒ Validity of POA, trust, etc., HCPOA ⇒ If guardian appointed, who will be

appointed guardian – person and/or estate

⇒ Hearing and who will attend


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⇒ Waiver by anyone with priority to serve permanent/limited

⇒ Who serves as representative payee for social security

⇒ Provision to appoint future guardians ⇒ Notice of future appointments ⇒ Bond requirements ⇒ Guardian’s compensation ⇒ Continued service or discharge of ad

litem(s) ⇒ Who prepares paperwork and time

frame to do so ⇒ Parties’ right to be involved in future

hearings ⇒ Living arrangements ⇒ Funeral arrangements – right to plan

• Property issues ⇒ Agreements as to ward’s community or

separate property ⇒ Rights of spouse to manage community

property - 883 or otherwise ⇒ Partition or exchange agreement ⇒ Guardian’s authority to manage

community estate ⇒ Annual gifting – allowed and notice

requirements ⇒ Notice of sales or significant transfers ⇒ Guardian’s compensation ⇒ Payment of fees and expenses (cap or

not) ⇒ Coordination with any trusts or other

entities ⇒ Rights of parties to access and audit

guardian’s books and records ⇒ Expenses to be paid by guardian versus

wife, trustee or other third party ⇒ Right to divorce ward ⇒ Homestead rights ⇒ Who pays ad litem and applicant’s fees

and expenses F. Termination or modification of guardianship • Termination

⇒ Basis for termination ⇒ Who prepares paperwork and pleadings ⇒ Payment of any debt, obligations and

taxes ⇒ Ad litem’s consents ⇒ Doctor’s letter or other medical opinion

• Modification ⇒ How guardianship will be modified ⇒ Basis for modification ⇒ Doctor’s letter or other medical opinion ⇒ Who prepares paperwork and pleadings

and in how long ⇒ What powers will ward have ⇒ What powers will guardian have

G. Representations • Capacity of parties • Disclosure of assets • Authority to act in stated capacity • Discharge any reliance on statement by any

other party’s attorney or advisor • Include disclaimer of reliance other than

expressly stated in written settlement agreement

H. Release and indemnities • Release claims • Limitations in release of parties and/or

attorney or other advisors • Exclude release for obligations under

settlement agreement • Verify all required parties release and are

released in all desired capacities • Verify successor, affiliates and predecessor

are released, if desired • Verify all agents, heirs, etc. are bound • Indemnities for third party claims I. Disposition of litigation • Dismissal with or without prejudice • Time to dispose • Who is responsible for preparation of

paperwork • Who must execute written waivers • Who must withdraw/dismiss contests • Rights of counsel to review • Whether parties must attend hearing or none

required J. Remedies in default • Settlement agreement enforced as contract • Settlement agreement to be incorporated in

judgment and enforce accordingly • Right to attorneys fees and expenses K. Miscellaneous • Agreement supersedes any oral or prior

agreements (exclude any agreements to remain in effect)


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• Applicant for guardianship was in good faith and just cause

• Agreement must be modified in writing • Choice of law • Incorporate exhibits or attach • Advise of own counsel • Whether agreement can be executed in

multiple counterparts • Whether facsimile signature same as original • Where future notices should be sent • Heading and titles are for descriptive

purposes only • Agreement to mediate/arbitrate future

disputes – binding arbitration • Effective date • Court approvals, if any The size and scope of this non-exhaustive, representative list should convey to the practitioner that executing such agreements at the end of a long day should be done with extreme caution. Once such an agreement is signed, it may be very difficult to renounce later if a material omission is discovered. Finally, note that Rule 11 of the Texas Rules of Civil Procedure states that unless otherwise provided for in these rules, no agreement between attorneys or parties touching any pending suit will be enforced unless it is in writing, signed, and filed with the papers as part of the record, or unless it is made in open court and entered of record. TEX. R. CIV. P. 11. In contested guardianships, it is important to put all agreements between attorneys or parties in writing, such as agreements to bring the proposed ward to the hearing or agreements to allow testimony to be admitted into evidence without hearsay or evidentiary objections.

Contested Guardianships Chapter

A-1

EXHIBIT A

[STYLE]

MOTION IN LIMINE

[Name] (“Movant”), files this his Motion in Limine, and would respectfully show the

Court the following:

1.

Movant is the alleged incapacitated person whose rights and property are at issue in the

above-referenced guardianship proceeding [or state other basis for standing].

2.

[Name of person with adverse interest] lacks standing in the pending purported

guardianship proceeding pursuant to Section 642(b) of the Texas Probate Code that provides, in

relevant part, as follows:

(b) A person who has an interest that is adverse to a proposed ward or incapacitated person may not:

(1) file an application to create a guardianship for the proposed ward or incapacitated person;

TEX. PROB. CODE ANN. § 642(b) (Vernon Supp. 1999); see also Allison v. Walvoord, 89 S.W.2d

62 (Tex. Civ. App.—El Paso 1991, no writ) (Texas Legislature has limited standing in

guardianship to persons interested in protecting alleged incapacitated person).

3.

[State basis for adverse interest. For example:] Mr. Jones is indebted to Movant and

made adverse claims against him and his estate. Mr. Jones has (i) claimed the ownership of

certain assets belonging to Movant and (ii) threatened to sue Movant. Furthermore, Movant has

claims and causes of action against Mr. Jones for conversion and malicious prosecution.


A-2

4.

Furthermore, Mr. Jones is disqualified to serve as Movant’s guardian pursuant to Section

681 of the Texas Probate Code. Mr. Jones is unsuitable and Movant has expressly disqualified

Mr. Jones from serving as either guardian of his person or estate. A copy Movant’s Declaration

of Guardian in the Event of Later Incompetence or Need of Guardian is attached as Exhibit A

and incorporated by this reference.

5.

Movant requests that the Court find that as a matter of law, Mr. Jones lacks standing to

appear in the pending guardianship proceeding to either contest any Application for

Appointment of Guardian of the Person and Estate, or seek appointment as Movant’s permanent

guardian, as he has an adverse interest to Movant. Movant requests these determinations be

made prior to any additional costs being unnecessarily incurred in this matter, as to the necessity

of a guardian or who is to be appointed.

WHEREFORE, PREMISES CONSIDERED Movant, [Name] requests that this Court (i)

grant Movant’s Motion in Limine and determine that Mr. Jones has an adverse interest to

Movant; (ii) strike Mr. Jones’ pleadings in this cause; and (iii) for such other and further relief to

which Movant may show himself justly entitled.

Respectfully submitted,

By: [Attorney Information] Attorneys for Movant


A-3

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing instrument was forwarded to: by hand delivery, facsimile and/or certified mail, return receipt requested, on this ____ day of __________, 2000.

B-1

EXHIBIT B

[STYLE]

Charge of the Court LADIES AND GENTLEMEN OF THE JURY: This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed by the instructions in this Charge. In discharging your responsibility on this Jury, you will observe all the instructions which have previously been given you. I shall now give you additional instructions which you should carefully and strictly follow during your deliberations. 1. Do not let bias, prejudice or sympathy play any part in your deliberations. 2. In arriving at your answers, consider only the evidence introduced here under oath and such exhibits, if any, as have been introduced for your consideration under the rulings of the Court, that is, what you have seen and heard in this courtroom, together with the law as given you by the Court. In your deliberations, you will not consider or discuss anything that is not represented by the evidence in this case. 3. Since every answer that is required by the Charge is important, no juror should state or consider that any required answer is not important. 4. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers. 5. You will not decide the answer to a question by lot or by drawing straws, or by any other method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to abide by the result to be reached by adding together each juror's figures and dividing by the number of jurors to get an average. Do not do any trading on your answers; that is, one juror should not agree to answer a certain question one way if others will agree to answer another question another way. 6. You may render your verdict upon the vote of _____ or more members of the Jury. The same _____or more of you must agree upon all of the answers made and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a majority or any other vote of less than _____ jurors. If the verdict and all of the answers therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the entire Jury. If any juror disagrees as to any answer made by the verdict, those jurors who agree to all findings shall each sign the verdict.


B-2

7. You have been allowed to take notes during the trial of this case. You may have those notes with you in the jury room during your deliberations. The notes you have taken are not evidence. Your personal recollection of the evidence takes precedence over any notes you have taken. You should base your verdict only on the evidence presented during the trial. You may not display your notes or disclose the contents of your notes to any other juror during your deliberations. To do so is a violation of these instructions. These instructions are given you because your conduct is subject to review the same as that of the witnesses, parties, attorneys and the Judge. If it should be found that you have disregarded any of these instructions, it will by jury misconduct and it may require another trial by another jury; then all of our time will have been wasted. The presiding juror or any other who observes a violation of the Court's instructions shall immediately warn the one who is violating the same and caution the juror not to do so again. When words are used in this charge in a sense which varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning. Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be based on a preponderance of the evidence. If you do not find that a preponderance of the evidence supports a "Yes" answer, then answer "No." The term 'preponderance of the evidence" means the greater weight and degree of credible testimony or evidence introduced before you and admitted in this case. Whenever a question requires other than a "Yes" or "No" answer, your answer must be based on a preponderance of the evidence. In answering a question based on a “preponderance of the evidence,” a fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proven. If you answer questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of the instructions in or your answers to any other questions about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at time of judgment.


B-3

QUESTION NO. ____

Do you find by clear and convincing evidence that _____________ is an incapacitated person?

Answer “yes” or “no” Answer:____________

INSTRUCTIONS:

“A determination of incapacity must be evidenced by recurring acts or occurrences within the immediate preceding six-month period and not by isolated instances of negligence or bad judgment.”

“A person for whom a temporary guardian has been appointed may not be presumed to be a totally or partially incapacitated person.”

DEFINITIONS:

“Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth or the allegations sought to be established.

“Incapacitated person” means 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.

Source: TEX. PROB. CODE ANN. Section 601(13)


B-4

If your answer to Question No. __ is “No,” then and only then answer Question No.

____. Otherwise, do not answer the following question.

QUESTION NO. _____

Do you find by clear and convincing evidence that _______________ lacks capacity to do some, but not all of the tasks necessary to care for his/her person?

Answer “yes” or “no”

Answer ____________


B-5

If your answer to Question No. __ is “No,” then and only then answer Question No. ____. Otherwise, do not answer the following question.

QUESTION NO. ______

Do you find by clear and convincing evidence that _______________ lacks capacity to do some, but not all of the tasks necessary to manage his/her property?


Answer:____________


B-6

If your answer to Question No. ____ or ____ is “Yes,” answer Question No. ____.

Otherwise, do not answer this question.

QUESTION NO. ______

Do you find by clear and convincing evidence that the rights of _______ will be protected by the appointment of a guardian of his/her person?


Answer: ____________


B-7

If your answer to Question No. ____ or ____ is “Yes,” answer Question No. ____. Otherwise, do not answer this question.

QUESTION NO. _______

Do you find by clear and convincing evidence that the property rights of _____________ will be protected by the appointment of a guardian of his/her estate?


Answer: ____________


B-8

QUESTION NO. _____

Do you find by a preponderance of the evidence that ________________ is eligible to act as guardian of the person of _________________?


Answer: ____________

(may try to get grounds for disqualification or

an instruction here.)


B-9

QUESTION NO. _____

Do you find by a preponderance of the evidence that ________________ is eligible to act as guardian of the estate of _________________?


Answer: ____________

(may try to get grounds for disqualification or

an instruction here.)


B-10

Question No._____

Did___________ act in good faith and with just cause in the filing and prosecution of the Application for Appointment of Guardianship of the Person and Estate of ________________?

Answer “yes” or “no” Answer: ________________ Source: TEX. PROB. CODE ANN. Section 665B

INSTRUCTION:

“Good faith” means an action which is prompted by honesty of intention or a reasonable belief that the action was probably correct. “With just cause” means the actions of _____________ in this proceeding were based on reasonable grounds and there was a fair and honest cause or reason for the actions.


B-11

If you answered Question No. ____ “Yes,” then answer the following question.

Question No. ____

State in dollars and cents the amount, if any, of the attorneys fees, expenses and costs incurred by ___________ that were reasonably and necessarily incurred in pursuing the request for the appointment of a Guardian.

ANSWER IN DOLLARS AND CENTS. Answer: _$_______________ Source: Tex. Prob. Code Ann. Section 665B

C-1

EXHIBIT C

[STYLE]

MOTION TO EXTEND TEMPORARY GUARDIANSHIP PENDING CONTEST PURSUANT TO TEXAS PROBATE CODE SECTION 875(k)

TO THE HONORABLE COURT:

Movant, ____________________, Temporary Guardian of the Person and Estate of

__________, an Incapacitated Person, (“Ward”) files this h__ Motion to Extend Temporary

Guardianship Pending Contest Pursuant to Texas Probate Code Section 875(k), and shows the

Court the following:

1.

On __________, this Court appointed __________ as Temporary Guardian of the Person

and Estate of Ward. The temporary guardianship remained in effect until ___________.

2.

On __________, ___________ filed h__ Application for Appointment of Permanent

Guardian of the Person and Estate of Ward, since it is in the best interest of the Ward that the

temporary guardianship be made permanent. On or about ___________, _____________ filed

h__ contest to ____________’s Application for Appointment of Permanent Guardianship, and in

addition, filed h__ own Application for Appointment of Permanent Guardian. The contest

remains unresolved.

3.

Pursuant to Texas Probate Code Section 875(k), when an application to convert a temporary

guardianship to a permanent guardianship is challenged or contested, this Court shall appoint a

temporary guardian whose term expires after sixty (60) days from the original date of

appointment of the temporary guardian, or at the hearing to appoint a permanent guardian,

whichever is later.


Error! Unknown document property name. C-2

WHEREFORE, PREMISES CONSIDERED, ________________, Temporary Guardian of

the Person and Estate of ________________, an Incapacitated Person, prays that this temporary

guardianship be extended pursuant to Section 875(k) of the Texas Probate Code; that

___________ remain as temporary guardian of the person and estate of Ward pending contest;

and for such other and further relief to which Movant may show h__self justly entitled. Respectfully submitted, By: [Attorney Information]

Attorney for Movant

CERTIFICATE OF SERVICE I, _________________, do hereby certify that a true and correct copy of the foregoing instrument was forwarded to: by certified mail, return receipt requested, on this the ____ day of __________________, 2000.

D-1

EXHIBIT D

[STYLE]

ORDER EXTENDING TEMPORARY GUARDIANSHIP PENDING CONTEST On this day came on to be considered the Motion of Movant, _____________________,

Temporary Guardian of the Person and Estate of _____________, an Incapacitated Person, to

extend the Temporary Guardianship Pending Contest pursuant to Texas Probate Code Section

875(k), and the Court is of the opinion and finds that there exists a necessity to extend the

temporary guardianship, and that __________________ should remain as temporary guardian of

the Person and Estate of ________, an Incapacitated Person. It is therefore,

ORDERED, that _______________ remain as Temporary Guardian of the Person and Estate

of Ward pending contest, pursuant to Texas Probate Code Section 875(k). It is further,

ORDERED, that the temporary guardian shall have the following powers:

a. To take control of Proposed Ward’s financial affairs to determine the status and extent of h__ assets.

b. To take possession of Proposed Ward’s assets and other documents wherever

located.

c. To make medical decisions regarding placement and to facilitate treatment for Proposed Ward’s benefit as allowed by the Texas Probate Code, and for h__ to have complete access to all past, current, and future medical records of Proposed Ward to assist h__ in making such decisions;

d. To engage the services of medical providers, nurses, psychiatrists, neurologists

including eye care and dental care providers, all for the care and benefit of Pro-posed Ward; and

e. To provide food, clothing, and shelter for Proposed Ward, including arranging for

care at skilled nursing facilities. SIGNED this the ____ day of ________________, 2000.


D-2

JUDGE PRESIDING APPROVED AS TO FORM: By: [Attorney Information] Attorney for Movant


E-1

EXHIBIT E

[STYLE]

APPLICATION FOR APPOINTMENT OF TEMPORARY GUARDIAN PENDING CONTEST

PURSUANT TO TEXAS PROBATE CODE SECTION 875(k) TO THE HONORABLE COURT:

__________ (“Applicant”) makes and files this, h__ Application for Appointment of

Temporary Guardian of the Person and Estate of ______________ Pending Contest pursuant to

Section 875(k) of the Texas Probate Code, and would respectfully show the Court the following:

1.

__________________ (“Proposed Ward”), is an adult __male, whose date of birth is

_______________, and currently resides in _______, ______ County, Texas, and may be served

with citation at .

2.

Applicant is the _________ [relationship] of Proposed Ward and resides at

__________________, ________ County, Texas. Applicant desires to be appointed Temporary

Guardian of the Person and Estate of Proposed Ward Pending Contest. Applicant is eligible to

be so appointed.

3.

This Court has jurisdiction and venue over this proceeding because Proposed Ward resides

in ______ County, Texas, and the principal part of Proposed Ward’s property is situated in

______ County, Texas.


E-2

4.

Pursuant to Section 633(c) of the Texas Probate Code, the following persons will be served

by citation:

[insert a listing of the names and address of the Proposed Ward (if twelve years of age or older), Proposed Ward’s parents, Proposed Ward’s spouse, court-appointed conservator or person having control of the care and welfare of the Proposed Ward, and the per-son named to serve as guardian if that person is not the applicant.]

5.

Pursuant to Section 633(d) of the Texas Probate Code, the following persons will receive

this application by certified mail, return receipt requested:

[insert a listing of the names and address of the all adult siblings and children of the Proposed Ward, the administrator of a nursing home facility or similar facility where the Proposed Ward resides, the operator of a residential facility in which the Proposed Ward’s resides, the agent under a power of attorney signed by the Proposed Ward., and any person designated to serve as the Proposed Ward’s guardian in a written declaration.]

6.

Proposed Ward is totally incapacitated.

7.

Proposed Ward has expressed that it is h__ preference that Applicant serve as guardian as

authorized by the Texas Probate Code. The Court Investigator has stated in h__ report that

Proposed Ward wants Applicant to serve as h__ guardian. Applicant is eligible to serve as

Temporary Guardian of the Person and Estate Pending Contest and requests this Court give due

consideration to Proposed Ward’s preference pursuant to Section 689 of the Texas Probate Code.

Applicant requests appointment and is qualified to be appointed as Temporary Guardian of the

Person and Estate Pending Contest of Proposed Ward.


E-3

8.

Alternatively, Applicant requests that a qualified neutral third party be appointed Temporary

Guardian of the Estate Pending Contest and that Applicant be appointed Temporary Guardian of

the Person Pending Contest of Proposed Ward.

9.

A necessity exists for the appointment of a Temporary Guardian of the Person and Estate of

Proposed Ward Pending Contest. Proposed Ward is totally incapacitated. Although such

incapacity has been admitted by all parties except the attorney ad litem, a contest has been filed

to Applicant’s right to serve, delaying the appointment of a permanent guardian.

10.

Imminent danger exists which necessitates the appointment of a Temporary Guardian

Pending Contest in accordance with Section 875 of the Texas Probate Code. Substantial

evidence exists that Proposed Ward’s physical well-being may be impaired and that Proposed

Ward’s estate may be wasted, as enumerated more specifically in the Paragraphs below.

11.

Proposed Ward is unable to make reasonable and informed decisions in matters concerning

h__ health or estate. In support of the immediate need for the appointment of a guardian,

Applicant attaches as Exhibits A and B, respectively, and incorporates by this reference, the

physician’s letter of ______________, Applicant’s expert, and the physician’s letter of Attorney

Ad Litem’s expert, ____________________.


E-4

12.

This Court should appoint a Temporary Guardian of the Estate Pending Contest to assist

Proposed Ward so that _he may have an opportunity to actually have h__ interests adequately

represented.

13.

Applicant requests the Court grant the following limited powers and authority to the

Temporary Guardian of the Estate Pending Contest:

a. To take control of Proposed Ward’s financial affairs to determine the status and extent of h__ assets;

b. To take possession of Proposed Ward’s assets and other documents wherever

located, including the contents of Proposed Ward’s safe deposit boxes; c. To take such actions as may be necessary or proper to collect the proceeds of any

insurance policy or policies (of whatever nature) or any annuity contract or contracts and social security proceeds which may be owing to Proposed Ward;

d. To file an individual income tax return, if necessary, and to file any other

necessary income tax returns for Proposed Ward for periods of time subsequent to the Temporary Guardian of the Estate’s appointment and during the Temporary Guardianship and to pay such income taxes as may be owing in connection therewith, to prepare and file any and all inventories (and other reports and matters as may be necessary) in any Court having jurisdiction of Proposed Ward’s Estate or in connection with said tax returns;

e. To pay all ad valorem taxes, current or delinquent, which may be or become

owing by Proposed Ward; and f. To incur expenditures for the protection of Proposed Ward’s property, and to

apply to this Court for authority to expend estate funds on an as needed basis to pay expenses of the Temporary Guardianship, subject to further court approval.

14.

Applicant requests the Court grant the following powers and authority to the Temporary

Guardian of the Person Pending Contest:


E-5

a. To make medical decisions and engage the services of medical providers and nurses, including eye and dental care providers, for the care and benefit of Proposed Ward, as allowed by the Texas Probate Code.

b. To provide food, clothing, and shelter for the Ward, including arranging for care

at ________.

15.

Based on the physicians’ letters, Proposed Ward’s estate is in imminent danger if a

Temporary Guardian of the Estate Pending Contest is not appointed. There is no one who has

legal authority to consent to medical treatment, as Proposed Ward is incapable of giving

informed consent, and there is no one authorized to collect life insurance proceeds or social

security benefits on Proposed Ward’s behalf. A Temporary Guardian of the Person and Estate

Pending Contest should be appointed.

16.

Applicant brings this Application for the appointment as Temporary Guardian of the Person

and Estate Pending Contest or, in the alternative, as Temporary Guardian of the Person Pending

Contest in good faith and for just cause. Applicant, therefore, respectfully requests the Court

find that h__ attorneys have acted in good faith and for just cause in their representation of

Applicant, and that h__ attorneys’ fees related to this Application, the hearing thereon, and the

establishment of the requested guardianship be approved and paid out of Proposed Ward’s

guardianship estate.

WHEREFORE, PREMISES CONSIDERED, Applicant prays that this Court appoint

Applicant, __________, Temporary Guardian Pending Contest of the Person and Estate of

_________________________, pending the outcome of the contest or, in the alternative, that

this Court appoint Applicant, ______________, Temporary Guardian Pending Contest of the

Person of __________________ and a qualified neutral third party Temporary Guardian Pending


E-6

Contest of the Estate of ______________; that the appointment of the attorney ad litem be

continued; that a time for a hearing on this Application be set; that attorney fees be awarded

against the Proposed Ward’s estate; that a trial on the permanent guardianship be set; that notice

and citation be issued as required by law; and for such other and further relief to which

Applicant may show h__self justly entitled.

Respectfully submitted, By: [Attorney Information] Attorney for Applicant THE STATE OF TEXAS § § COUNTY OF ______ § BEFORE ME, the undersigned authority, on this day personally appeared __________, Applicant in the foregoing Application for Appointment of Temporary Guardian Pending Contest, known to me to be the person whose name is subscribed to the above and foregoing Application and on h__ oath stated that such Application contains a correct and complete statement of the matters to which it relates and all the contents thereof are true, complete and correct to the best of Applicant’s knowledge. [Applicant] SWORN TO AND SUBSCRIBED BEFORE ME on this the ____ day of ______________, 20___. (SEAL) NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS



E-7

I, _______________, hereby certify that a true and correct copy of the foregoing instrument was forwarded to: by certified mail, return receipt requested, in accordance with the Texas Rules of Civil Procedure on this ________ day of ________, 20___.


F-1

EXHIBIT F

[STYLE]

MOTION FOR INDEPENDENT MENTAL EXAMINATION TO THE HONORABLE COURT: Movant, [Name], in the above entitled and numbered cause, makes this [his/her] Motion for

Independent Mental Examination and in support thereof would respectfully show the Court the

following:

1.

Movant believes it is in the best interest of [Name of Proposed Ward] (“Proposed Ward”) to

be evaluated by an independent psychiatrist in this proceeding.

2.

Movant believes that it would be in Proposed Ward’s best interest, pursuant to Section 687

of the Texas Probate Code for the Court to order a complete independent mental examination of

Proposed Ward, a party to this proceeding, to be conducted by a Court designated board certified

geriatric psychiatrist, for the purpose of determining Proposed Ward’s present mental state and

for assessment of her care and rehabilitation needs.

3.

Based on the facts, there is good cause shown for a compulsory independent mental

examination of Proposed Ward.

4.

Movant therefore requests the Court to designate the time, place, manner, conditions, and

scope of the examination to be conducted by the psychiatrist named by the Court to make such

examination of Proposed Ward. Movant also asks this Court to order all parties to supply the


F-2

psychiatrist with all of Proposed Ward’s medical records from [select relevant date], to the

present in their possession or that of their attorney. [If applicable, __________ should also be

ordered to turn over all of the caretakers daily long of medications.] It is further requested that

the report of the examining psychiatrist be provided to the Court and all counsel of record.

5.

Movant requests that the cost of such examination be paid by ______________ as it is

beneficial to Proposed Ward to have the facts of her mental status determined.

6.

Movant request that the examination be conducted with no one present other than the court

appointed psychiatrist and his or her staff and medical advisors, and that no one communicate

with the psychiatrist prior to the issuance of his or her report, other than to provide the medical

records by letter with copy to all counsel of record.

WHEREFORE, PREMISES CONSIDERED, Movant prays that the Court order Proposed

Ward be examined by a board certified geriatric psychiatrist designated by this Court for the

purpose of undergoing an independent mental examination pursuant to Section 687 of the Texas

Probate Code to determine [his/her] mental status; that the Court order the medical to be turned

over; that no one be present except the psychiatrist and his or her staff and medical advisors; that

the Court order such examination to be paid by ________________; and for such other and

further relief to which Movant may show [himself/herself] justly entitled.

Respectfully submitted:

By: [Attorney Information] Attorneys for Movant



F-3

The undersigned certifies that a copy of the foregoing was forwarded to the following: by hand delivery, certified mail, return receipt requested, or facsimile on this _____ day of __________, 20___.

G-1

EXHIBIT G

[STYLE]

ORDER FOR INDEPENDENT MENTAL EXAMINATION On this day came to be considered the Motion for Independent Mental Examination filed

herein by [Name of Movant], and the Court, after hearing the evidence and having considered

such motion and the applicable law, finds that good cause has been shown for the granting to

such motion pursuant to Section 687 of the Texas Probate Code. It is therefore,

ORDERED, ADJUDGED, and DECREED that _________________________ a board

certified geriatric psychiatrist status, is hereby appointed by the Court to make an examination of

[Name of Proposed Ward] as to [his/her] mental status, and that such psychiatrist should render

his/her findings in a written report to this Court. It is further,

ORDERED, that all parties and their counsel shall deliver all medical records, from

[relevant date] to the present, including the caretaker’s daily log of medication, to the

psychiatrist within three (3) days of the date of this Order. It is further,

ORDERED, that no one will be present other than Dr. __________ and [his/her] medical

staff and medical advisors during the examination, and that no one communicate with Dr.

__________ other than by cover letter with the medical records, with copy to all counsel.

ORDERED, that the cost of such examination and report shall be paid to said psychiatrist by

_______________.

SIGNED this ______ day of ______________, 2000.

JUDGE PRESIDING APPROVED AS TO FORM ONLY:


G-2

By: [Attorney Information]

Attorneys for Movant


H-1

EXHIBIT H

[STYLE]

REQUESTS FOR DISCLOSURE [Name] files [his/her] First Set of Requests for Disclosure pursuant to Rule 194 of the Texas

Rules of Civil Procedure as amended effective January 1, 1999. Pursuant to Rule 194, you are

requested to disclose, within (30) thirty days of service of this Request, the information or

material described to the offices of [Name]’s counsel, ____________________.


By:

[Attorney Information]

Attorneys for [Name]


I certify that a copy of the foregoing instrument was forwarded to: by hand delivery, facsimile and/or certified mail, return receipt requested, on this ____ day of __________, 20___.


I-1

EXHIBIT I

[STYLE]

FIRST SET OF INTERROGATORIES, FIRST SET OF REQUESTS FOR PRODUCTION

AND FIRST SET OF REQUESTS FOR ADMISSIONS To: Mr. Jones, by and through his attorneys of record, ____________________________. [Name of Requestor] files this [his/her] First Set of Interrogatories, First Set of Requests for

Production, and First Set of Requests for Admissions upon Mr. Jones, and demands the

following:

In this pleading the following definitions and usages shall apply:

(A) “You” or “your” means Mr. Jones, all of Mr. Jones’s attorneys, accountants, associates,

successors, employees, agents, partners, or independent contractors performing any service for

him.

(B) “Or” means and/or.

(C) The singular shall include the plural, and the plural the singular, whenever the effect of

doing so is to increase the information responsive to these interrogatories, requests for admission

or requests for production.

(D) The word “document” as used herein shall mean, without limitation, any and all of the

items listed below which belong to, or are in, or subject to your possession, custody, or control

by whomever generated or received: Any and all writings of any kind; photographs; slides;

motion pictures; video tapes; phonograph records; audio tapes or other mechanical recordings;

reports; computer records; computer print-outs; computer reports; computer programs; computer

data; e-mails; charts of accounts; brochures; interoffice communications; telephone and other

types of recordings; papers; ledgers; books; statements of account; journals; accounts; calendars;


I-2

contracts; letters; notes; catalogues; canceled checks; bank statements; invoices; bills and

statements; diaries; purchase orders; telephone company bills and statements; tax returns;

records or memoranda of telephone communications to or from any governmental or law

enforcement subdivision, officer, or agency; and any other instrument or document or recording

of any nature whatsoever, including any carbon, photographic, microfilm, electronic, or other

type of copy of such document or documents, whether or not such copy is different from the

original by reason of any markings, additions, revisions, deletions, or substitutions.

(E) The term “the Proposed Ward” shall refer to ________________.

(F) The term “through present” shall mean the date you answer this discovery, AND shall

include further the last date you are required to supplement your responses to this discovery

pursuant to the Texas Rules of Civil Procedure.

Interrogatories

Pursuant to the provisions of Rules 192 and 197 of the Texas Rules of Civil Procedure, you

are required to complete written answers to the interrogatories on Exhibit A to this pleading

immediately upon the expiration of thirty (30) days following the date you are served with these

interrogatories. Your written answers must be served upon the undersigned,

____________________, at their offices at _________________________. With regard to the

interrogatories, you are instructed that failure to answer fully and in writing any of the following

interrogatories may result in the Court entering an order compelling you to file written answers,

directing you to pay the undersigned reasonable expenses incurred in securing such an order,

including attorneys’ fees, striking all of your pleadings in this litigation, and/or entering a default

judgment against you. Further, you have an affirmative duty to supplement your answers to the

interrogatories with information that you may acquire after filing your written answers if such


I-3

information makes it known that your previous answer was incorrect when made or if the

answer, though correctly made, is no longer true and the circumstances are such that your failure

to amend your written answers would be in substance a knowing concealment. You are hereby

requested to so supplement any of your written answers to these interrogatories at such time and,

in the absence of any written objection to this request, it will be presumed that you have agreed

to do so. Answers to these interrogatories shall be made under oath separately and fully in

writing.

If you object to any of these Interrogatories because you believe the number of answers

called for exceeds the permissible limit provided by the Texas Rules of Civil Procedure, then

please provide the maximum number of answers you believe are required by the Texas Rules of

Civil Procedure by answering the Interrogatories in consecutive order until you have reached the

maximum number of answers you believe are so required. This subparagraph is by no means an

admission by the proponent of these Interrogatories that the number of answers called for by

these Interrogatories is excessive or violative of any rule of law.

Requests for Production

You are requested pursuant to Rule 192 and 196 of the Texas Rules of Civil Procedure, to

produce and permit the inspection and copying of items requested in Exhibit A to this pleading at

the offices of _______________ and ____________________________________, immediately

upon the expiration of thirty (30) days following the date you are served with this set of requests

for production.

If a document requested hereunder has already been produced, in response to a previous

request for production, subpoena, or order in this litigation, it need not be produced again.


I-4

However, any such documents previously produced should be identified by date, description,

and paragraph herein to which the documents are relevant.

Requests for Admissions

In accordance with Rule 198 of the Texas Rules of Civil Procedure, you are requested to

admit or deny the relevant facts requested on Exhibit A to this pleading. Each of the matters of

which an admission is requested is deemed admitted without further action unless within thirty

(30) days from the date you are served with this set of requests for admissions, a sworn statement

is delivered to the offices of _______________ and ___________________, either admitting or

denying the same or setting forth in detail the reasons why you cannot truthfully admit or deny

the same.

Respectfully submitted, By: [Attorney Information] Attorneys for __________

CERTIFICATE OF SERVICE I certify that a copy of the foregoing instrument was forwarded to: by hand delivery, facsimile and/or certified mail, return receipt requested, on this ____ day of __________, 20___.


I-5

EXHIBIT A NOTICE: THE TERM “DOCUMENT,” WHETHER USED IN THE SINGULAR OR IN ITS PLURAL FORM IS DEFINED IN THE BODY OF THIS PLEADING AND EACH TIME IT IS USED HEREIN IT INCLUDES ALL OF THE PAPERS, TANGIBLE THINGS, AND RECORDING MEDIA DESCRIBED IN THE DEFINITION. NOTICE FURTHER: THE REQUESTS FOR PRODUCTION IN THIS PLEADING INCLUDE NOT ONLY DOCUMENTS AND THINGS WHICH ARE IN YOUR ACTUAL POSSESSION, CUSTODY OR CONTROL, BUT ALSO DOCUMENTS AND THINGS IN YOUR CONSTRUCTIVE POSSESSION. YOU NEED NOT HAVE ACTUAL PHYSICAL POSSESSION OF THE DOCUMENTS AND THINGS REQUESTED. AS LONG AS YOU HAVE A SUPERIOR RIGHT TO COMPEL THE PRODUCTION FROM A THIRD PARTY (INCLUDING AN AGENCY, AUTHORITY OR REPRESENTATIVE), YOU HAVE POSSESSION, CUSTODY OR CONTROL. TEXAS RULES OF CIVIL PROCEDURE, RULE 166b.2.b. INTERROGATORY NO. 1: State your name, address, telephone number, social security number, your birth date, your driver’s license number, and the name, address, and telephone number of anyone helping you prepare answers to these interrogatories. Include in the address requested in this and all other interrogatories, the street address, apartment number, city or township, county, and state. If the address is rural, then include in the description of the address called for by this and all other interrogatories directions to the nearest tenth of a mile over public roads and streets from the nearest incorporated town or city. ANSWER: REQUEST FOR PRODUCTION NO. 1: Produce for inspection and copying all documents related to this lawsuit given to, obtained, reviewed, or prepared by, (i) each person whom you intend to call as an expert witness in this lawsuit; and (ii) each person used for consultation and who is not expected to be called as a witness at trial if (a) the consulting expert’s work product forms a basis either in whole or in part of the opinions of an expert who is to be called as a witness, or (b) the consulting expert’s report or work product is reviewed by or received by the expert who is to testify in this case. RESPONSE:


I-6

INTERROGATORY NO. 2: State the name, corporation, occupation, home address, business address, home telephone number and business telephone number of each and every person who you intend to call as a witness at the trial. ANSWER: REQUEST FOR ADMISSION NO. 1: Admit that the Proposed Ward is an adult individual who is not substantially unable to provide food, clothing, or shelter for himself. RESPONSE: REQUEST FOR ADMISSION NO. 2: Admit that the Proposed Ward is an adult individual who is not substantially unable to care for his own physical health. RESPONSE: REQUEST FOR ADMISSION NO. 3: Admit that the Proposed Ward is an adult individual who is not substantially unable to manage his own financial affairs. RESPONSE: INTERROGATORY NO. 3: If you have not admitted Request for Admission No. 1, 2 or 3 above in full, please state each and every reason for not doing so, and please provide a complete statement of facts which support and refute your reasons. ANSWER:


I-7

REQUEST FOR PRODUCTION NO. 2: Produce for inspection and copying all documents that relate directly or indirectly to the mental condition of the Proposed Ward for the period beginning January 1, 1995, through present. RESPONSE: REQUEST FOR PRODUCTION NO. 3: Produce for inspection and copying all documents that relate directly or indirectly to the physical condition of the Proposed Ward for the period January 1, 1995, through present. RESPONSE: INTERROGATORY NO. 4: Please state the name, address and office telephone number of each and every physician, doctor, osteopath, psychiatrist, psychologist, or other medical care provider who has provided medical care or advice to the Proposed Ward, or has provided advice to you about the Proposed Ward, during the period of time from January 1, 1995, through present. ANSWER: INTERROGATORY NO. 5: Please state the date, time and nature of each personal or telephonic contact you have had with the Proposed Ward from January 1, 1997, through the present. ANSWER: REQUEST FOR ADMISSION NO. 4: Admit that you are not suitable to act as guardian of the Proposed Ward. RESPONSE: REQUEST FOR ADMISSION NO. 5: Admit that you have no personal knowledge of the Proposed Ward’s physical health.


I-8

RESPONSE: REQUEST FOR ADMISSION NO. 6: Admit that you have no personal knowledge of the Proposed Ward’s mental health. RESPONSE: REQUEST FOR ADMISSION NO. 7: Admit that you have no personal knowledge of the Proposed Ward’s ability to handle his financial matters. RESPONSE: INTERROGATORY NO. 6: List every fact, incident or matter of which you have personal knowledge that evidence your claim the Proposed Ward lacks judgment to handle his personal or financial affairs. ANSWER: INTERROGATORY NO. 7: Have you, or has anyone on your behalf, interviewed or obtained any statements from anyone concerning any matters relevant to this lawsuit? If so, please state the name, address and telephone number of each such person. ANSWER: REQUEST FOR PRODUCTION NO. 4: Please produce for inspection and copying all such statements from anyone concerning any matters relevant to this lawsuit. RESPONSE:


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INTERROGATORY NO. 8: Please state each and every fact and reason which supports your allegation in your application for the appointment of a guardian for the Proposed Ward that the Proposed Ward is unable to care for himself or to manage his financial affairs. ANSWER: INTERROGATORY NO. 9: Are you, or have you been, a party to any lawsuit (other than this lawsuit), during the period of time from January 1, 1990, through the present? If so, please state the Cause Number, Style and name of the court in which any such suit is pending. ANSWER: REQUEST FOR PRODUCTION NO. 5: Please produce for inspection and copying the pleadings in any suit which is identified in your answer to Interrogatory No. 9. RESPONSE: INTERROGATORY NO. 10: Are you indebted to the Proposed Ward, [list any related trust or entities]? If so, please state the amount of any such debt and describe the reason for any such debt. ANSWER: REQUEST FOR PRODUCTION NO. 6: Please produce for inspection and copying all documents relating to any debt that is described in your answer to Interrogatory No. 10. RESPONSE: INTERROGATORY NO. 11: Do you have any claim that is adverse to the Proposed Ward, [list any trust in which the Proposed Ward has an interest or any business entities], or any property, real or personal, of the


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Proposed Ward or [list any trust in which the Proposed Ward has an interest or any business entities]? If so, please describe each such claim in full. ANSWER: REQUEST FOR PRODUCTION NO. 7: Please produce for inspection and copying all documents relating to any claim that is described in your answer to Interrogatory No. 11. RESPONSE: INTERROGATORY NO. 12: State your educational background (include in your answer the names of all educational institutions you have attended since high school, the dates of attendance, and any degrees you have earned). Please also identify all professional licenses you hold, whether any such license is current, and whether you have been disciplined by the governing body of any profession in which you hold a license. ANSWER: REQUEST FOR PRODUCTION NO. 8: Please produce for inspection and copying all diplomas, professional licenses, and all documents relating to any disciplinary proceeding. RESPONSE: INTERROGATORY NO. 13: State the person or persons who asked you to join, as an applicant, in the guardianship proceeding pending under Cause Number __________, in the __________ Court of __________ County, Texas. ANSWER: INTERROGATORY NO. 14: State every reason that supports your claim the Proposed Ward’s physical well-being or estate may be in jeopardy.


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ANSWER: INTERROGATORY NO. 15: Have you ever been charged with or arrested for any crime other than a minor traffic vio-lation? If so, please state the date, location and nature of the alleged offense for which you were charged with or arrested, and the name of the governmental agency which charged or arrested you. ANSWER: INTERROGATORY NO. 16: Have you ever been convicted or been made subject to deferred adjudication, suspended sentence or probation for any crime other than a minor traffic violation? If so, please state the date, location and nature of the offense, the name of the court which rendered any such measure against you, and describe the nature of the conviction, adjudication or probation rendered against you. ANSWER: INTERROGATORY NO. 17: State your marital history, giving the names and present addresses for you current spouse, if any, and any prior spouse. ANSWER: INTERROGATORY NO. 18: State whether you have ever been divorced. If so, please state the cause number, style, identity of the court, and date of any judgment or decree for any such divorce. ANSWER: REQUEST FOR PRODUCTION NO. 9: Please produce for inspection and copying any divorce decree or judgment that is identified in your answer to Interrogatory No. 19.


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RESPONSE: INTERROGATORY NO. 19: State your employment history since your 21st birthday. Include in your answer the name, address and telephone number of each employer, the name of your supervisor at each employer, and the dates of employment. ANSWER: REQUEST FOR PRODUCTION NO. 10: Please produce for inspection and copying copies of your IRS Form 1040, U.S. Income Tax Return, for calendar years 1995 through the present. RESPONSE: INTERROGATORY NO. 20: Has the Proposed Ward made any gifts or loans to you since the date you attained age 21. If so, please describe each such gift or loan by providing the date, nature, and amount (if made in the form of money) of any gift or loan from the Proposed Ward to you in an amount or value in excess of $500.00. ANSWER: REQUEST FOR PRODUCTION NO. 11: Please produce for inspection and copying all documents relating to any gift or loan that you describe in your answer to Interrogatory No. 20. RESPONSE: REQUEST FOR ADMISSION NO. 8: Admit you are presently indebted to the Proposed Ward. ANSWER:


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INTERROGATORY NO. 21: Have you ever been treated by a psychiatrist for a mental or emotional disorder or disease, chronic intoxication, or drug abuse or addiction? If so, please describe the reason for any such treatment and state the name and address of each such treating psychiatrist. ANSWER: INTERROGATORY NO. 22: Have you ever been admitted as a patient to any hospital or treatment facility for treat-ment of a mental disorder or disease, chronic intoxication, or drug abuse or addiction? If so, please state the name and address of each such hospital or treatment facility, the name and address of the treating physician, and the date of each such admission to a hospital or treatment facility. ANSWER: INTERROGATORY NO. 23: Are you currently taking any prescription drugs for any mental disorder or disease, chronic intoxication, or drug abuse or addiction? If so, please identify each such prescription drug you are currently taking and the name and address of the prescribing physician. ANSWER: INTERROGATORY NO. 24: Do you suffer from any physical condition, infirmity or disease that impairs (i) your ability to communicate with others, (ii) your ability to read or write, (iii) your short term or long term memory, (iv) your ability to make decisions, or (v) your ability to drive an automobile? If so, please describe each such condition, infirmity or disease. ANSWER: REQUEST FOR PRODUCTION NO. 12: Please produce for inspection and copying all documents which relate to any crime or other violation described or identified in your answers to Interrogatories 15 and 16. RESPONSE:


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REQUEST FOR PRODUCTION NO. 13: Please produce for inspection and copying all documents which relate to your claim that the Proposed Ward is unable to manage the affairs of his person and estate. RESPONSE: REQUEST FOR PRODUCTION NO. 14: Please produce for inspection and copying all documents which relate to your claim that a necessity exists for the appointment of a permanent guardian of the Proposed Ward’s person and estate. RESPONSE: REQUEST FOR PRODUCTION NO. 15: Please produce for inspection and copying all documents which Dr. ________ provided you. RESPONSE: REQUEST FOR ADMISSION NO. 9: Admit you claim to have acquired from Proposed Ward an interest in the [describe any property received from the Proposed Ward]. RESPONSE: REQUEST FOR PRODUCTION NO. 16: Please produce for inspection and copying all documents which relate to any personal or business matter involving you and the Proposed Ward from January 1, _____, through the present. RESPONSE:


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REQUEST FOR PRODUCTION NO. 17: Please produce for inspection and copying all documents which relate to [name any relevant parties]. RESPONSE: REQUEST FOR PRODUCTION NO. 18: Please produce for inspection and copying all documents relating to your claim for attorneys’ fees and expenses from the Proposed Ward including, but not limited to, all attorney fee contracts, letter agreements, billing statements, and invoices. RESPONSE: REQUEST FOR PRODUCTION NO. 19: Please produce for inspection and copying all documents relating to written complaints or concerns you have prepared (except to or for your lawyers) relating to the Proposed Ward’s personal and financial matters. RESPONSE: REQUEST FOR PRODUCTION NO. 20: Please produce for inspection and copying all documents which are drafts or copies of the Proposed Ward’s current or prior wills, powers of attorney, designation of fiduciaries, or other estate planning documents. RESPONSE: REQUEST FOR PRODUCTION NO. 21: Please produce for inspection and copying all documents that have not been produced pursuant to the above Requests For Production Nos. 1 through 20 which relate to, or which reflect, facts relevant to this lawsuit. RESPONSE:


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EXHIBIT J

[STYLE]

FIRST SET OF INTERROGATORIES AND FIRST SET OF REQUESTS FOR PRODUCTION

AND FIRST SET OF REQUESTS FOR ADMISSIONS TO: _______________________________, in h__ capacity as attorney/guardian ad litem for

___________________, ___________________, __________, Texas _____.

_____________________, Applicant, in the above entitled and numbered cause, files this

h__ First Set of Interrogatories, First Requests for Production, and First Set of Requests for

Admissions upon _______________, by and through h__ attorney ad litem, ________________,

and demands the following:

In this pleading the following definitions and usages shall apply:

(A) “You” or “your” means (i) __________________, individually and in all fiduciary

capacities for the benefit of ________, all of h__ attorneys, accountants, associates, successors,

employees, agents, partners, or independent contractors performing any service for h__; and (ii)

and where appropriate in the context the attorney ad litem acting for and on behalf of

__________________.

(B) “Or” means and/or.

(C) The singular shall include the plural, and the plural the singular, whenever the effect of

doing so is to increase the information responsive to these interrogatories, requests for admission

or requests for production.

(D) The word “document” as used herein shall mean, without limitation, any and all of the

items listed below which belong to, or are in, or subject to your possession, custody, or control

by whomever generated or received: Any and all writings of any kind; photographs; slides;

motion pictures; video tapes; phonograph records; audio tapes or other mechanical recordings;

reports; computer records; computer print-outs; computer reports; computer programs; computer

data; e-mails; charts of accounts; brochures; interoffice communications; telephone and other


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types of recordings; papers; ledgers; books; statements of account; journals; accounts; calendars;

contracts; letters; notes; catalogues; canceled checks; bank statements; invoices; bills and

statements; diaries; purchase orders; telephone company bills and statements; tax returns;

records or memoranda of telephone communications to or from any governmental or law

enforcement subdivision, officer, or agency; and any other instrument or document or recording

of any nature whatsoever, including any carbon, photographic, microfilm, electronic, or other

type of copy of such document or documents, whether or not such copy is different from the

original by reason of any markings, additions, revisions, deletions, or substitutions.

(E) The term “the Proposed Ward” shall refer to __________.

(F) The term “through present” shall mean the date you answer this discovery, AND shall

include further the last date you are required to supplement your responses to this discovery

pursuant to the Texas Rules of Civil Procedure.

Interrogatories

Pursuant to the provisions of Rules 192 and 197 of the Texas Rules of Civil Procedure, you

are required to complete written answers to the interrogatories on Exhibit A to this pleading

immediately upon the expiration of thirty (30) days following the date you are served with these

interrogatories. Your written answers must be served upon the undersigned attorneys,

__________________, ____________________, _____________, _______, Texas. With regard

to the interrogatories, you are instructed that failure to answer fully and in writing any of the

following interrogatories may result in the Court entering an order compelling you to file written

answers, directing you to pay the undersigned reasonable expenses incurred in securing such an

order, including attorneys’ fees, striking all of your pleadings in this litigation, and/or entering a

default judgment against you. Further, you have an affirmative duty to supplement your answers

to the interrogatories with information that you may acquire after filing your written answers if

such information makes it known that your previous answer was incorrect when made or if the

answer, though correctly made, is no longer true and the circumstances are such that your failure

to amend your written answers would be in substance a knowing concealment. You are hereby


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requested to so supplement any of your written answers to these interrogatories at such time and,

in the absence of any written objection to this request, it will be presumed that you have agreed

to do so. Answers to these interrogatories shall be made under oath separately and fully in

writing.

If you object to any of these Interrogatories because you believe the number of answers

called for exceeds the permissible limit provided by the Texas Rules of Civil Procedure, then

please provide the maximum number of answers you believe are required by the Texas Rules of

Civil Procedure by answering the Interrogatories in consecutive order until you have reached the

maximum number of answers you believe are so required. This subparagraph is by no means an

admission by the proponent of these Interrogatories that the number of answers called for by

these Interrogatories is excessive or violative of any rule of law.

Requests for Production

You are requested pursuant to Rule 192 and 196 of the Texas Rules of Civil Procedure, to

produce and permit the inspection and copying of items requested in Exhibit A to this pleading at

the offices of _____________________, ___________________, ______________________,

_______, Texas, immediately upon the expiration of thirty (30) days following the date you are

served with this set of requests for production.

If a document requested hereunder has already been produced, in response to a previous

request for production, subpoena, or order in this litigation, it need not be produced again.

However, any such documents previously produced should be identified by date, description,

and paragraph herein to which the documents are relevant.

Requests for Admissions

In accordance with Rule 198 of the Texas Rules of Civil Procedure, you are requested to

admit or deny the relevant facts requested on Exhibit A to this pleading. Each of the matters of

which an admission is requested is deemed admitted without further action unless within thirty

(30) days from the date you are served with this set of requests for admissions, a sworn statement


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is delivered to the undersigned attorney, ____________, either admitting or denying the same or

setting forth in detail the reasons why you cannot truthfully admit or deny the same. Respectfully Submitted, By: [Attorney Information]

Attorney for ____________

CERTIFICATE OF SERVICE I, _______________, do hereby certify that a true and correct copy of the foregoing instrument was forwarded to: by certified mail, return receipt requested, on this the ____ day of ___________________, 20___.


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EXHIBIT A NOTICE: THE TERM “DOCUMENT,” WHETHER USED IN THE SINGULAR OR IN ITS PLURAL FORM IS DEFINED IN THE BODY OF THIS PLEADING AND EACH TIME IT IS USED HEREIN IT INCLUDES ALL OF THE PAPERS, TANGIBLE THINGS, AND RECORDING MEDIA DESCRIBED IN THE DEFINITION. NOTICE FURTHER: THE REQUESTS FOR PRODUCTION IN THIS PLEADING INCLUDE NOT ONLY DOCUMENTS AND THINGS WHICH ARE IN YOUR ACTUAL POSSESSION, CUSTODY OR CONTROL, BUT ALSO DOCUMENTS AND THINGS IN YOUR CONSTRUCTIVE POSSESSION. YOU NEED NOT HAVE ACTUAL PHYSICAL POSSESSION OF THE DOCUMENTS AND THINGS REQUESTED. AS LONG AS YOU HAVE A SUPERIOR RIGHT TO COMPEL THE PRODUCTION FROM A THIRD PARTY (INCLUDING AN AGENCY, AUTHORITY OR REPRESENTATIVE), YOU HAVE POSSESSION, CUSTODY OR CONTROL. TEX. R. CIV. P. Rule 166b.2.b. INTERROGATORY NO. 1: State your name, address, telephone number, social security number, your birth date, your driver’s license number, and the name, address, and telephone number of anyone helping you prepare answers to these interrogatories. Include in the address requested in this and all other interrogatories, the street address, apartment number, city or township, county, and state. If the address is rural, then include in the description of the address called for by this and all other interrogatories directions to the nearest tenth of a mile over public roads and streets from the nearest incorporated town or city. ANSWER: INTERROGATORY NO. 2: State the name, address, and telephone number of each expert whom you intend to call as a witness in this lawsuit. For each such witness, give the subject matter on which he or she is expected to testify, the mental impressions and opinions held by the expert and the facts known to the expert (regardless of when the facts or information was acquired) which relate to or form the basis of the mental impressions and opinions held by the expert. This interrogatory includes but is not limited to the name, address, and telephone number of all experts used for consultation and who are not expected to be called as a witness at trial if (i) the consulting expert’s work product forms a basis either in whole or in part of the opinions of an expert who is to be called as a witness, or (ii) the consulting expert’s report or work product is reviewed by or received by the expert who is to testify in this case. ANSWER:


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REQUEST FOR PRODUCTION NO. 1: Produce for inspection and copying all documents related to this lawsuit given to, obtained, reviewed, or prepared by, (i) each person whom you intend to call as an expert witness in this lawsuit; and (ii) each person used for consultation and who is not expected to be called as a witness at trial if (a) the consulting expert’s work product forms a basis either in whole or in part of the opinions of an expert who is to be called as a witness, or (b) the consulting expert’s report or work product is reviewed by or received by the expert who is to testify in this case. RESPONSE: REQUEST FOR PRODUCTION NO. 2: Produce for inspection and copying (i) the Proposed Ward’s last will, (ii) the last will of the Proposed Ward’s spouse, (iii) all trust agreements signed by the Proposed Ward or the Proposed Ward’s spouse, including all exhibits thereto, (iv) all powers of attorney signed by the Proposed Ward or h__ spouse, and (v) all directives to physicians signed by the Proposed Ward or Proposed Ward’s spouse. RESPONSE: INTERROGATORY NO. 3: State the name, corporation, occupation, home address, business address, home telephone number and business telephone number of each and every person who has knowledge of facts relevant to this lawsuit; and, provide a brief statement of the relevant facts attributable to each such person. ANSWER: REQUEST FOR ADMISSION NO. 1: Admit that the Proposed Ward is an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for h__self, to care for h__ own physical health, or to manage h__ own financial affairs. RESPONSE:


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INTERROGATORY NO. 4: If you have not admitted Request for Admission No. 1 above in full, please state each and every reason for not doing so, and please provide a complete statement of facts which support and refute your reasons. ANSWER: INTERROGATORY NO. 5: If you have not admitted Request for Admission No. 2 above in full, please state each and every reason for not doing so, and please provide a complete statement of facts which support and refute your reasons. ANSWER: REQUEST FOR PRODUCTION NO. 3: Produce for inspection and copying all documents that relate directly or indirectly to the mental condition of the Proposed Ward during the period of time from the date the Proposed Ward began to reside in ___________, Texas, through present. RESPONSE: REQUEST FOR PRODUCTION NO. 4: Produce for inspection and copying all documents that relate directly or indirectly to the physical condition of the Proposed Ward and _________________ during the period of time from the date the Proposed Ward and _________________ began to reside in _________, Texas, through present. RESPONSE: INTERROGATORY NO. 6: Please state the name, address and office telephone number of each and every physician, doctor, osteopath, psychiatrist, psychologist, or other medical care provider who has provided medical care or advice to the Proposed Ward, or has provided advice to you about the Proposed Ward during the period of time from when _he began residing in ______, Texas, through present.


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ANSWER: INTERROGATORY NO. 7: Please state the name and address of each and every hospital, clinic, or out-patient facility that has provided medical care or advice to the Proposed Ward, or has provided advice to you about the Proposed Ward during the period of time from when _he began residing in _______, Texas, through present. ANSWER: INTERROGATORY NO. 8: Please state each and every reason why, in your opinion, it would be in the best interest of the Proposed Ward for __________ to become the guardian of the Proposed Ward, if that is your opinion. ANSWER: REQUEST FOR ADMISSION NO. 2: Admit that _________________ is not the only person who would be qualified to act as guardian of the Proposed Ward. RESPONSE: INTERROGATORY NO. 9: If you have not admitted Request for Admission No. 3 above in full, please state each and every reason why you have not done so, and please provide a complete statement of facts which support and refute your reasons. ANSWER: REQUEST FOR ADMISSION NO. 3: Admit that _____________________ is not disqualified to become guardian of the Proposed Ward. RESPONSE:


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INTERROGATORY NO. 10: If you have not admitted Request for Admission No. 4 above in full, please state each and every reason why you have not done so, and please provide a complete statement of facts which support and refute your reasons. Include in your answer each and every reason why, in your opinion, _____________________ would not be a qualified person to act as guardian of the Proposed Ward. ANSWER: REQUEST FOR ADMISSION NO. 4: Admit that _____________ is a person suitable to become guardian of the Proposed Ward. RESPONSE: INTERROGATORY NO. 11: If you have not admitted Request for Admission No. 5 above in full, please state each and every reason why you have not done so, and please provide a complete statement of facts which support and refute your reasons. Include in your answer each and every reason why, in your opinion, _____________ would not be a suitable person to act as guardian of the Proposed Ward. ANSWER: INTERROGATORY NO. 12: After the Proposed Ward began living in Texas, were there any attempts or plans made to change any trust or will created or signed by the Proposed Ward or h__ spouse? If so, please explain and describe all such attempts or plans and explain and describe why any such attempts or plans were not carried out. ANSWER: INTERROGATORY NO. 13: Has the Proposed Ward signed a will, trust agreement, power of attorney or directive to physicians since he began to reside in __________, Texas? If so, please describe the documents which have been signed and provide the name, address, and telephone number of each attorney


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or estate planner who prepared or assisted with the preparation and execution of each such document. ANSWER: REQUEST FOR ADMISSION NO. 5: Admit that _________________ is a person suitable to become guardian of the Proposed Ward. RESPONSE: INTERROGATORY NO. 14: If you have not admitted Request for Admission No. 5 above in full, please state each and every reason why you have not done so, and please provide a complete statement of facts which support and refute your reasons. Include in your answer each and every reason why, in your opinion, _________________ would not be a suitable person to act as guardian of the Proposed Ward. ANSWER: REQUEST FOR ADMISSION NO. 6: Admit that, after the Proposed Ward began living in Texas, there were attempts or plans made to change a will signed by the Proposed Ward? RESPONSE:


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EXHIBIT K

[STYLE]

NAME’S OBJECTIONS TO APPLICATION FOR PAYMENT OF APPOINTEE’S FEES AND EXPENSES AND REQUEST FOR JURY TRIAL

TO THE HONORABLE COURT: [Name] files this [his/her] Objections to Application for Payment of Appointee’s Fees

and Expenses filed by [Appointee] and would show the Court as follows:

1.

__________ objects to the fees and expenses as they were not reasonable and necessary

in and around __________ County, Texas.

2.

[If applicable: ] __________ requests a jury trial of all disputed issues of fact with

respect to the Application for Payment of Appointee’s Fees and Expenses filed by [Name of

Appointee].

WHEREFORE, PREMISES CONSIDERED, __________, requests that this Court deny

the approval of the Application for Payment of Appointee’s Fees and Expenses filed by

[Appointee]; and for such other and further relief to which Mr. Murphy may show himself justly

entitled.


By:


Attorneys for __________


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The undersigned does hereby certify that a true and correct copy of the foregoing has been forwarded to the following counsel of record by facsimile on this the _____ day of __________, 20___:


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EXHIBIT L

[STYLE]

MOTION FOR MEDIATION TO THE HONORABLE JUDGE:

Movant, _________________ files this his/ her Motion for Mediation and in support

thereof would respectfully show the Court the following:

1.

(state nature of dispute without admitting any fact or dispute)

2.

Movant therefore requests that this Court order mediation to attempt to settle this matter

pursuant to Section 154.021 of the Texas Civil Practice and Remedies Code. It is expected that

all necessary parties will waive or be served by the date of the mediation

WHEREFORE, PREMISES CONSIDERED, Movant, ________________, requests this

Court appoint a mediator and refer this matter to mediation by_____________ (date). Movant

requests such further relief to which he/she may show himself/herself justly entitled.


By:


Attorney for Movant


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EXHIBIT M

[STYLE]

ORDER REFERRING CASE TO MEDIATION

On this day came on to be heard the Motion of ___________ to refer the above entitled

and numbered cause to mediation pursuant to Section 154.021 of the Texas Civil Practice and

Remedies Code; and this Court, after hearing the arguments of counsel and considering

______________________________ in the absence of trial, finds the motion to be in all respects

property and should be granted. It is therefore,

ORDERED, that this matter is referred to __________________

__________________________________________________________(name of mediator) who

is appointed mediator in this cause. It is further,

ORDERED, that the mediation shall be completed by ________________. It is further,

ORDERED, that the cost of mediation will be paid by ___________________________.

SIGNED this ________ day of ______________________, 2000.

JUDGE PRESIDING


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EXHIBIT N

AGREEMENT TO MEDIATE

We, the undersigned parties and counsel, agree to use the mediation services provided by _______________ for the lawsuit pending styled as:

The undersigned agree that shall be the mediator of this matter and that the mediation will be conducted in accordance with Section 154.001 et seq., Texas Civil Practice and Remedies Code and the Rules for Mediation provided to counsel and/or parties. All parties recognize that mediation is a voluntary settlement conference and that the mediator is not a judge and has no authority to force a settlement on the parties. All parties commit to use their best efforts to settle this case and participate in good faith.

This mediation is being conducted on a fee basis per letter attached.

During the mediation process, all parties are encouraged to consult with their attorneys regarding their legal rights and obligations. The parties recognize that the mediator is not giving legal advice or counsel, or analyzing any party’s legal rights or obligations.

The parties recognize and agree that the mediation process is one of settlement negotia-tion and that settlement negotiations are not admissible in any litigation or arbitration, as provided by applicable law. The parties understand and agree that all communications with the mediator outside of the presence of the other party are confidential.

The parties understand and agree that there will be no recording of any part of the media-tion session, nor may anyone be served with process of any nature during the session. The parties understand and agree that neither the mediator, nor the mediator’s files, may be subpoenaed for any purpose.

The undersigned have read and agreed to the foregoing terms. DATE: SIGNATURE:


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EXHIBIT O

ATTORNEY’S INFORMATION SHEETS AND REQUEST FOR MEDIATION Scheduled Date for Mediation at ____________ o’clock __m. on ___________________, 2000 COURT/CAUSE NO. Style: 1. Names, addresses and telephone numbers of parties Plaintiff (identify authorized

representatives, if known) and attorneys of record: 2. Names, addresses and telephone numbers of parties Defendant (identify authorized

representatives, if known) and attorneys of record: 3. Names, addresses and telephone numbers of other parties (please specify, “Intervenor”,

etc.) (identify authorized representatives, if known) and attorneys of record: 4. The nature of the Plaintiff’s claims and the Defendant’s defenses and counterclaims: 5. What relief is sought by the parties: 6. What are the primary disputed issues of law or fact in this case, from your perspective? 7. What is the status of discovery (1) little or none; (2) some discovery done but

substantially incomplete; (3) substantially complete or incomplete). 8. A. Do you have sufficient information to form a realistic settlement position? If not,

what else is needed?

B. What are the last offers of the parties? 9. Please attach any documents which you believe would assist.


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On Behalf of ________________________________, one of the parties in the above cause, the undersigned attorney of record requests that _________________________________, agree to act as mediator in the above case and, as attorney of record and on behalf of my client, agree to be bound by the “Rules for Mediation” provided by the mediator to me, and printed on the attached pages.

DATED the _____ day of _________________, 2000.



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EXHIBIT P

RULES FOR MEDIATION

1. Definition of Mediation. Mediation is a process under which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them. The mediator may suggest ways of resolving the dispute, but may not impose his own judgment on the issues for that of the parties.

2. Agreement of Parties. Whenever the parties have agreed to mediation they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement to mediate.

3. Consent to Mediator. The parties consent to the appointment of the individual named as mediator in their case. The Mediator shall act as an advocate for resolution and shall use his best efforts to assist the parties in reaching a mutually acceptable settlement.

4. Conditions Precedent to Serving as Mediator. The Mediator will only serve in cases in which the parties are represented by attorneys. The Mediator shall not serve as a mediator in any dispute in which he has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the Mediator shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties. In the event that the parties disagree as to whether the Mediator shall serve, the Mediator shall not serve.

5. Authority of Mediator. The Mediator does not have the authority to decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator does not have the authority to decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties achieve settlement. If necessary, the Mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the Mediator or the parties, as the Mediator shall determine.

6. Commitment to Participate in Good Faith. While no one is asked to commit to settle their case in advance of mediation, all parties commit to participate in the proceedings in good faith with the intention to settle, if at all possible.

7. Parties Responsible for Negotiating Their Own Settlement. The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a settlement acceptable to them. The Mediator, as an advocate for settlement, will use every effort to facilitate the negotiations of the parties. The Mediator does not warrant or represent that settlement will result from the mediation process.

8. Authority of Representatives. PARTY REPRESENTATIVES MUST HAVE AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE DECISION TO


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SETTLE SHALL BE PRESENT. The names and addresses of such persons shall be communicated in writing to all parties and to the Mediator.

9. Time and Place of Mediation. The Mediator shall fix the time of each mediation session. The mediation shall be held at the office of the Mediator, or at any other convenient location agreeable to the Mediator and the parties, as the Mediator shall determine.

10. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each party shall prove the Mediator and all attorneys of record with an information Sheet and Request for Mediation on the form provided by the Mediator setting forth its position with regard to the issues that need to be resolved.

At or before the first session, the parties will be expected to produce all information reasonably required for the Mediator to understand the issues presented. The Mediator may require any party to supplement such information.

11. Privacy. Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the Mediator.

12. Confidentiality. Confidential information disclosed to a Mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the Mediator. All records, reports or other documents received by a mediator while serving in that capacity shall be confidential. The Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. Any party that violates this agreement shall pay all fees and expenses of the Mediator and other parties, including reasonable attorneys’ fees, incurred in opposing the efforts to compel testimony or records from the Mediator.

The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other proceeding: 1) views expressed or suggestions made by another party with respect to a possible settlement of the dispute; b) admissions made by another party in the course of the mediation proceedings; c) proposals made or views expressed by the Mediator; or d) the fact that another party had or had not indicated willingness to accept a proposal for settlement made by the Mediator.

13. No Stenographic Records. There shall be no stenographic record of the mediation process and no person shall tape record any portion of the mediation session.

14. No Service of Process at or near the site of the Mediation Session. No subpoenas, summons, complaints, citations, writs or other process may be served upon any person at or near the site of any mediation session upon any person entering, attending or leaving the session.

15. Termination of Mediation. The mediation shall be terminated: a) by the execution of a settlement agreement by the parties; b) by declaration of the Mediation to the


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effect that further efforts at mediation are no longer worthwhile; or c), after the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.

16. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial proceedings relating to the mediation.

Neither Mediator nor any law firm employing Mediator shall be liable to any party for any act or omission in connection with any mediation conducted under these rules.

17. Interpretation and Application of Rules. The mediator shall interpret and apply these rules.

18. Fees and Expenses. The Mediator’s daily fee shall be agreed upon prior to mediation and shall be paid in advance of each mediation day. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including fees and expenses of the Mediator, and the expenses of any witness and the cost of any proofs or expert advice produced at the direct request of the Mediator, shall be borne equally by the parties unless they agree otherwise.

contested guardianships · advanced guardianship course houston march 9, 2007 chapter 5 . 128 -...

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