Eight Essentials for Guardianship
by Donna J. Yarborough
The guardianship suit presents what is often uncharted territory for the newcomer including where there are special courts (the Probate Courts) and special statutes found in the Texas Probate Code. The key issue in a guardianship case is proving to the court that a proposed ward is “incapacitated” so that the court will step in and appoint a qualified person to act on the ward's behalf. The eight essentials which follow are key points about guardianship litigation that the unwary newcomer may overlook.
1. Determine if your client is qualified to serve. When considering a potential guardianship case, is your client—the person seeking to be appointed as guardian—“qualified” to serve? TPC § 681. The statutory disqualifications would be triggered if your client owes the proposed ward money, has an adverse claim against the proposed ward or for any other good reason is incapable of properly or prudently managing and controlling a ward or a ward’s estate. Even if you feel your client is qualified, always state in your application for guardianship that in the alternative you want a qualified third party to be appointed as the guardian in the event your client does not get appointed by the court.
2. Decide what type of guardianship you are seeking. Two types of guardianships are available in Texas courts. One is the “guardian of the person” and the other is “guardian of the estate.” You can seek either type of guardianship individually, or you can seek both types together in your application. Read the definition of “incapacity” in the Code carefully and determine what type of guardianship you are seeking. TPC § 3(p).
3. Find out if your client qualifies for a bond. Once you have determined that your client is qualified, determine if he or she can qualify for a bond. A bond is required in every guardianship over a person’s estate. Contact a bonding company and get your client pre-approved so that there are no problems later after he or she is appointed by the court.
4. Get a doctor’s certification letter. Before the court will appoint a guardian, the applicant for guardianship must file a Doctor’s Certification Letter. TPC § 687. The local Probate Courts now use a specific form for these letters, so be sure you provide the correct form to the doctor to fill out. The Doctor’s Certification Letter must be prepared by the physician not earlier than 120 days prior to the guardianship application being filed.
5. Get medical proof in contested cases. If the guardianship is contested by any party, then the Doctor’s Certification Letter you have filed is hearsay. You will need to get the physician who prepared the report or another doctor familiar with the proposed ward’s situation to appear at the hearing to testify about the proposed ward’s incapacity.
6. Call the proposed ward to testify at the hearing. Always call the proposed ward to testify if you want your application to be granted. Subpoena the proposed ward through his or her attorney if you have to. If you have a lengthy guardianship proceeding, take the proposed ward’s deposition to establish additional evidence.
7. Get evidence of incapacity in the last six months. Pursuant to TPC 684(c), a determination of incapacity must be evidenced by recurring acts or occurrences within the preceding six-month period and not by isolated instances of negligence or bad judgment. Get your proof in line, including witnesses who have seen the proposed ward in the preceding six months and have knowledge of these “recurring acts.”
8. Give the required statutory notice. One of the easiest rules to miss in guardianship litigation is the Section 633 Notice. This statute requires that the attorney for the applicant give notice to all of the persons listed in TPC 633(d) and then file a notice with the court. Additionally, under TPC 633(f), a court cannot act on an application for guardianship until the Monday following the expiration of the 10-day period beginning on the date of service of notice and citation. Any guardianship created prior to the end of that 10-day notice period is void.
If you read the Probate Code sections carefully and follow the eight essentials listed above, you should be able to navigate through the world of guardianship law. The Probate Code also provides for a temporary guardianship under Section 875. This is a guardianship that is filed on an emergency basis. Temporary guardianships have their own deadlines and if you file one, be sure to review its specific requirements.
Donna J. Yarborough is an attorney at Staubus & Randall, L.L.P. Her practice focus includes guardianships, will contests, trust and fiduciary litigation and estate administration. She can be reached at firstname.lastname@example.org.