establishment of guardianships
TRANSCRIPT
ESTABLISHMENT OF GUARDIANSHIPS
Two Allen Center
October 23, 2015
Houston Volunteer Lawyers
Kenny Sumner
Romano & Sumner, LLC2245 Texas Dr., Suite 300Sugar Land, Texas 77479
Tel. (281) [email protected]
www.romanosumner.com
Definitions• Chapter 1002 of the Estates Code
• "Guardian" means a person who is appointed guardian under Subchapter D, Chapter 1101 of this code, or a temporary or successor guardian. Except as expressly provided otherwise, "guardian" includes the guardian of the estate and the guardian of the person of an incapacitated person
• "Incapacitated Person” means (1) A minor; (2) 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; or (3) A person who must have a guardian appointed to receive funds due the person from any governmental source.
• “Interested Person” means (1) an heir, devisee, spouse, creditor, or any other person having a property right in or a claim against an estate being administered; or (2) a person interested in the welfare of an incapacitated person
• "Proposed Ward" means a person alleged to be incapacitated in a guardianship proceeding.
• "Ward" is a person for whom a guardian has been appointed
Guardianship
HOW?• How is a Guardianship Proceeding started?• Section 1055.001 Any person may commence a
Guardianship Proceeding, unless the person has an interests that is adverse to the proposed ward.
• Challenges to a party’s standing (i.e. that they have an adverse interest) are brought by a Motion in Limine (very different from what most attorney’s recognize as a pre-trial motion to exclude evidence)
• Chapter 1102 The Court initiates a procedure to appoint a guardian if they have been given probable cause (usually after they have received an information letter)
1. Court will appoint an investigator or Guardian Ad Litem (GAL) to see if the person is incapacitated or if a guardianship is necessary
2. If it is necessary, the investigator or GAL shall file an application
WHERE?• JURISDICTION• Section 1022.001 All Guardianship Proceedings
must be filed and heard in a court exercising original probate jurisdiction. The Court also has jurisdiction of all matters related to the guardianship (defined in Section 1021.001). The Court may also exercise pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.
• Section 1022.005 for any county in which there is a Statutory Probate Court (SPC), that Court has exclusive jurisdiction of all guardianship proceedings.
• Section 1022.006 However, the SPC has concurrent jurisdiction with a district court in personal injury, survival or wrongful death actions by or against a person in the person’s capacity as a guardian AND concurrent jurisdiction in an action involving the guardian in which everyone aligned with the guardian is not an interested person in the guardianship
• Section 1022.002 In a county in which there is no SPC or County Court at Law exercising original probate jurisdiction (CCL) , the county court (CC) has original jurisdiction
• If the county does not have a SPC but does have a CCL, then the CC and the CCL have concurrent original jurisdiction.Q: What happens if the Guardianship Proceeding is
contested?• The SPC has jurisdiction for all Guardianship
Proceedings• Section 1022.003 County with no SPC or CCL
• Judge of the CC may, or on the motion of a party, shall (according to the motion)(a) request the assignment of a Statutory Probate
Court Judge(b) transfer the contested matter to a District Court
The preference is for a SPC Judge. The CC Judge may request that the SPC Judge hear the entire proceeding. A SPC Judge is grated the authority that is granted to an SPC
• The CC continues to exercise jurisdiction over the management of the guardianship
• Section 1022.004 County with no SPC but has a CCL• Judge of the CC may, or on the motion of a party,
shall Transfer the contested matter to the CCL• The Judge of the CC may transfer either the
contested matter or the entire proceeding to the CCL
• The CCL may hear the proceeding as if it was originally filed in the CCL
• Section 1022.007 (“Reach out and grab ya!”)• A Judge of a SPC may transfer to the SPC a cause
of action that is a matter related to a guardianship proceeding pending in the SPC
• The Judge can consolidate the transferred cause of action with the Guardianship Proceeding
• Section 1022.008 Transfer of contested guardianship of a Minor
• If an interested person contests an application or seeks the removal of a guardian the Judge, on the Judge’s own motion, may transfer all matters related to the Guardianship Proceeding to a court of competent jurisdiction in which a SAPCR under the Family Code is pending
• VENUE• Section 1023.001
• For an incapacitated person, venue is mandatory in county in which
• Proposed ward resides, or• Proposed Ward is located on the date the application
is filed, or• The principal estate of the proposed ward is located
• For a minor (remember an incapacitated person includes a minor) venue is permissive in county:
• Where both parents reside• Where parent who is sole managing conservator
resides• If only one parent is living, where that parent
resides• If both parents dead, but minor was in custody of a
deceased parent, county where last surviving parent resided
• If both parents died in a common disaster and no evidence parents died other than simultaneously the county in in which both deceased parents resided at the time of their simultaneous deaths
• If a guardian was named in a Will, then in the county where the Will was admitted to probate, or in the county of the appointee's residence (if in Texas)
WHAT?• A guardianship proceeding begins with a written
application filed in a court exercising probate jurisdiction
• Section 1101.001(b) requires the application to contain:1. Information about the proposed ward2. Information about the proposed guardian3. The type of guardianship sought3-a. Whether alternatives to guardianship and
available supports and services to avoid guardianship where considered
3-b. Whether any alternatives to guardianship and supports and services available to the proposed ward considered are feasible and would avoid the need for a guardianship
4. Information about the incapacity of the proposed ward, specific areas of protection, and the limitation or termination of rights requested including:a. The right of a proposed ward over 18 to voteb. The right of a proposed wards ability to drive
c. The right of a proposed ward to make personal decisions regarding residence
5. Facts requiring a guardian6. Interest of the applicant7. Nature of any kind of guardianship currently
existing8. Name & address of any person or institution
having care and custody of the proposed ward9. Approximate value and description of
proposed ward’s property10. Name & address of any person holding a
power of attorney signed by the proposed ward
11. For a minor proposed warda. Parents’ names, address or whether
deceasedb. Siblings’ names, address or whether
deceasedc. If no living parents or siblings, then the
names, address of other adult living relatives within the third degree of consanguinity
12. For a minor proposed ward, whether the minor was the subject of a legal or conservative proceeding in the preceding 2 years, if so
a. Court involvedb. Nature of the proceeding
c. Any final disposition of the proceeding13. For an adult proposed ward
a. Spouse name, if any, and address or that spouse deceasedb. Parents names & address or that they are deceased
c. Name and age of any siblings and address or that they are deceased
d. Name and age of any children and address or that they are deceased
e. If no living spouse, parent, adult siblings, or adult child, the names & address of other adult living relatives within the third degree of consanguinity
14. Facts showing the Court has venue15. If applicable, that the proposed guardian is a private
professional guardian who is certified and has complied with all requirement
(Whew!)
• Typically an applicant will also file a motion for the appointment of an attorney ad litem (AAL).
• Section 1054.001 mandates that the Court appoint an attorney ad litem to represent the ward’s interests.
Note: To be eligible for appointments (and now to represent an applicant) the attorney must have the guardianship certificate. Luckily for us here today we will meet this!
• Section 1054.005 mandates that the Court appoint a language or sign interpreter if necessary to ensure effective communication between the proposed ward and the attorney (the Court’s like bi-lingual attorneys for this reason)
• The AAL will file an answer for the proposed ward, their client.
• The applicant also has to file a physician’s certificate. If available, it is usually filed along with the application.
• Section 1101.103(a) . . . the Court may NOT grant an application to create a guardianship for an incapacitated person, other than a minor or person who needs a guardian to receive funds from a government source, unless the applicant presents a written letter or certificate from a physician licensed in Texas. The letter/certificate
1. Must be dated no earlier than 120 days before the date of the application is filed
2. Must be based on an examination that was performed no earlier than 120 days before the application is filed.
• The certificate will set forth the examining physician’s opinions regarding the nature and extent of a proposed ward’s incapacity.
• Section 1101.104 extends the time periods for the certificate to 24 months before the hearing date in cases where the proposed ward has an intellectual disability (formerly mental retardation)
• However, the determination of intellectual disability must be made by either a physician or a psychologist licensed in Texas or certified by the Department of Aging and Disability Services.
• If the applicant does not have a certificate when filing the application and they cannot obtain one (the proposed ward refuses to consent), they can file a Motion for an Independent Medical Evaluation.
• If the Court finds it necessary – at a hearing – the Court can appoint the necessary physician(s) to evaluate the proposed ward.
So, now that all the paperwork is filed with the Court, what’s next. . . Notice & Citation!
• Those parties who have an interest in the proposed ward must be given notice and/or served in a Guardianship Proceeding
• Section 1051.103 The sheriff or other officer shall personally serve citation on:
1. A proposed ward, who is 12 years of age or older; (An AAL cannot waive personal service upon the proposed ward)
2. The proposed ward's parents, if their whereabouts are known or can be reasonably ascertained;
3. Any court-appointed conservator or person having control of the care and welfare of the proposed ward;
4. The proposed ward’s spouse if the whereabouts of the spouse are known or can be reasonably ascertained; and
5. A person named in the application to be appointed guardian, if that person is not the applicant.
• Section 1051.104 The applicant must also send notice to the list of individuals listed in this section and must file with the court a Copy of the notice and an affidavit stating that the notice was mailed
• Section 1051.106 The court may not act on an application until the applicant has filed a copy of the notice and the affidavit
WHEN?• Chapter 1103 of the Estates Code provides for
circumstances where a minor also has a disability that will continue past their 18th birthday
• The application for guardianship can be filed no earlier than 180 days before the proposed ward’s 18th birthday.
• If the application is heard before the proposed ward’s 18th birthday, then the person who was appointed as guardian cannot actually become the guardian until after the proposed ward turns 18
WHO?• Best Interest standard utilized by the Court (Section
1104.101, see also Chapter 1104, Subchapter B)• Section 1104.001 Generally, there can be only one
guardian of the person or estate, but one person can be the guardian or the person and another can be guardian of the estate.
• However there are exceptions: a husband & wife, joint managing conservators. . .
• Section1104.002 Before appointing a guardian, the court shall make a reasonable effort to consider the incapacitated person’s preference of the person to be appointed guardian and, to the extent consistent with other provisions of this title, shall give due consideration to the preference indicated by the incapacitated person, regardless of whether the person has designated by declaration a guardian before the need arises. (this addition clarifies the previous uncertainly between a declaration made by a person prior to any incapacity and the wishes of that same person as a proposed ward in the Guardianship Proceeding)
• Section 1104.054 A minor at least 12 years old may also select a guardian by filing written statement with the court (so long as the court finds the selection to be in the minor’s best interest)
• Section 1104.052 Guardianship for minor orphan• Nearest ascendant in the direct line of the minor• If equal, the court selects based on the best
interest of the minor• Nearest of kin, or if two are equal, court selects
based on best interest of the minor• If no relative, the court appoints.
• Section1104.053 A parent may designate a guardian in a Will or Written designation. The court appoints this person in preference to anyone else so long as the court finds the person is not disqualified and would be in the best interest of the minor(s).
• Similar provision in Section 1104.103 for adult individual who is an incapacitated person.
• Section 1104.202 A person who is not incapacitated may make a written declaration of who they would want to be their guardian of the person, estate, or both in the event they become incapacitated and may disqualify a person from being guardian. The court cannot under any circumstances appoint a disqualified person. See also Section 1104.355
(But see revisions to Section1104.002)• Section 1104.210 A declaration may be revoked in
the same fashion as revoking a Will• Section 1104.211 If a person is divorced, and the
declaration names the spouse as guardian, the provision appointing the spouse has no effect.
• DISQUALIFICATION• Section 1104.351 A minor or a person who
because of inexperience, lack of education, or other good reason, is incapable of managing the person or estate of a was may not be appointed guardian.
• Section 1104.352 The court may not appoint a guardian if the court finds them unsuitable. (The court’s trump card)
• Section 1104.353 A person cannot be appointed as guardian is their conduct is notoriously bad, and it is presumed not to be in the best interest of the ward if the person has been convicted of:
• Any sexual offence• Aggravated assault• Injury to a child or to the elderly or a disabled person• Abandoning or endangering a child• Terroristic threat, or• Continuous violence against the family of the ward or
incapacitated person
• Section 1104.354 Conflict of Interest. A person cannot be appointed as guardian if the person has a conflict of interest. (unless it is a situation where the Court can appoint a GAL to represent the interest of the proposed ward.)
Note: Remember standing and Adverse Interest in Section 1055.001
• Section 1104.356 Cannot be a guardian if you do not have the certification required by Subchapter F
• Section 1104.357 Cannot be a guardian if you are a nonresident and you have failed to file with the court the name of a resident agent to accept service and all actions or proceedings relating to the guardianship.
• Almost…
• The next step is the Hearing. Section 1101.051• At the hearing, the court must inquire into the ability
of the proposed ward to care for themselves and manage their property.
• The proposed ward must be present unless the Court determines on the record or in the order that personal appearance is not necessary.
• The court can close the hearing at the request of the proposed ward, or the AAL
• Section 1101.052 The proposed ward is entitled to a jury trial on request.
Are we done yet?
• Section 1101.101 Findings & Proof• The Court must find by clear and convincing
evidence that:• The proposed ward is an incapacitated
person, • It is in the proposed ward’s best interest
to have the court appoint a guardian• The proposed ward’s rights or property
will be protected by the appointment of a guardian
• Alternatives to guardianship that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible
• Supports and services available to the proposed ward that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible
• Section 1101.101 Findings & Proof (Continued)• The Court must find by a preponderance of the
evidence that: • The court has venue of the case• The person to be appointed is eligible• 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
• The proposed ward:• Is totally without capacity, or• Lacks the capacity to do some, but not
all, of the tasks necessary to care for themselves or manage their property. [a finding here must specifically state whether the proposed ward lacks the capacity, or lacks sufficient capacity with supports and services, to make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.]
• Section 1101.153 Order - generally• The order appointing a guardian must contain
• Name of the person appointed• Name of the ward• Whether it is a guardian or the person,
estate, or both• The amount of any bond required• If a guardianship of the estate and the court
considers it necessary, 1, 2, o3 disinterested persons to appraise the estate
• That the clerk will issue letters of guardianship to the person appointed when the person has qualified
• Section 1101.151 Order Plenary Guardianship• If the Court finds the proposed ward totally
without capacity, the order must include (in addition to the general items in Section 1101.153) :
• That the guardian has full authority over the incapacitated person
• If necessary, the amount of funds from the ward’s estate the court will allow the guardian to spend for the ward
• Whether the ward is totally incapacitated because of a mental condition
• That the person does not have the capacity to operate a motor vehicle, make personal decisions regarding residence, and vote in a public election
• If it is a guardianship of the person or of both the person and estate, the rights of the guardian with respect to the person. [Section 1151.051(c)(1)]
• Section 1101.152 Order Less Than Plenary Guardianship• If the Court finds the proposed ward lacks some
capacity, the order must include (in addition to the general items in Section 1101.153) :
• The specific powers, limitations or duties of the guardian with respect to the person’s care or the management of the persons property
• The specific rights and powers retained by the person
• With the necessity for supports and services, and
• Without the necessity for supports and services
• If necessary, the amount of funds from the ward’s estate the court will allow the guardian to spend for the ward
• Whether the ward is incapacitated because of a mental condition, and if so whether the person
• Retains the right to make personal decisions regarding residence or, vote in a public election, or
• Maintains eligibility to hold or obtain a license to operate a motor vehicle
