JULY 2008

By:  James M. Bright

Attorney at Law 

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

            Few things can be more frustrating or more emotionally draining than to be faced with the need to be appointed guardian for a loved one.  This is particularly true if that loved one is able to cope with many of life’s challenges, but at the same time exhibits a pattern of placing themselves in danger through repeated lapses of cognitive skills in their daily lives.

            Additional concern and frustration is experienced if the person that one seeks to protect is a parent whose traditional role has been as a protector, not one in need of protection.  There is no easy way that this writer has been able to find to perform this distasteful task for a parent, but sometimes it becomes inevitable and must be done.

            Guardianship is not always the best solution.  If the person who is being protected continues to have sufficient abilities to recognize their own problem, and if they are willing to pass the reigns of control to a loved one, a durable power of attorney may serve as a substitute for guardianship at least in business matters.

            There are two basic types of guardianship for an adult who has become incapacitated.  This article, because of both space restraints and complexity, will address only permanent guardianship.  Temporary guardianship is typically used as an emergency action to be taken to preserve a person’s estate or safety while a permanent guardian is being appointed.

            The basic steps required to obtain a guardianship order are as follows and will almost certainly require the services of an attorney:

            Prepare and file application – Any person who does not have an “adverse interest” to the person who is incapacitated (hereinafter called “ward”) has the right to initiate a guardianship proceeding.  An oversimplified definition of adverse interest includes (1) spouse filing for divorce; (2) person claiming assets of the ward; (3) protected creditors; (4) business partner of the proposed ward; (5) guarantor of the proposed ward’s promissory note; and many possible others.

            Court must appoint an attorney ad litem – An ad litem is an attorney appointed by the court to protect the rights of the proposed ward.

            Notice and citation – Applicant must arrange for notice to be filed by the officer responsible for posting such notice for that particular court.  The proposed ward must be personally served with citation and given notice of when and where the hearing to determine mental capacity will be conducted.

            Medical examination and reports of physician – In the case of an adult incapacitated person, the very minimum in evidence will include a letter from the proposed ward’s physician which will communicate in rather detailed terms the facts regarding the proposed ward’s incapacity.  Some courts will further require that the physician also offer an affidavit in conjunction with the report or letter that states that the information is true and correct based upon his/her personal knowledge.  In some marginal cases, such as during the very early stages of Alzheimer’s, the court may require an independent examination by either a psychiatrist or neurologist of your choosing or one suggested by the court.

            Hearing – The applicant, the applicant’s attorney, the attorney ad litem and possibly a guardian ad litem, if one was appointed, must be present.  The proposed ward must also be present unless the attorney ad litem can satisfy the court that an appearance is not necessary.

            Findings required at hearing – The court must find by clear and convincing evidence that:  (i) the proposed ward is incapacitated; (ii) it is in the ward’s best interest to appoint a guardian; (iii) the rights of the proposed ward and/or his property will be protected by appointment of the guardian.  The clear and convincing burden is somewhat greater than the “preponderance of evidence” standard normally associated with civil lawsuits, but less than would normally be required for a criminal matter.  It is proof that should leave no reasonable doubt in the mind of the court that the guardianship is needed.

            The court must also find by the lesser standard of a “preponderance of the evidence” that the proposed guardian is eligible to act as the proposed ward’s guardian.

            Bond – The court must set a bond for the guardian of an estate or a ward.  This bond will likely be in an amount established to be the value of the ward’s cash and personal property plus anticipated income for the next twelve (12) months.  The bond must be posted quickly and must be approved by the court.  Failure to timely post a bond and take the oath of office as guardian will result in the court revoking its prior order appointing the guardian.

            Can attorney’s fees and costs be reimbursed?  One of the questions that often arises in guardianship proceedings is, “Can the costs and attorney’s fees incurred be paid by the ward’s estate which is being protected rather than by the applicant who is attempting to protect the ward and his/her estate?”  The answer is yes.  Costs and attorney’s fees may be awarded to compensate applicant’s attorney or to reimburse applicant for attorney’s fees and costs expended on an action that was filed in good faith and for just cause.  This is true even if another person (other than applicant) is ultimately appointed as guardian.

            Long term effects – There are shades of impact on the life of the ward, depending upon the court’s exact findings, but a few things that might be considered are:  possible limitation of driving rights, automatic revocation of an attorney-in-fact under a power of attorney, may affect the ward’s right to vote, ward may, depending upon other factors, still be able to execute a will or other testamentary documents, the ward may still be deposed, but a rebuttable presumption exists for incapacity, does not automatically constitute a showing of inability to stand trial for criminal acts.

            Guardianship can be a very hard path to follow for both the proposed guardian and the proposed ward, but it can also afford the greatest amount of protection for that loved one or their estate.  The ease or difficulties encountered depend in great part upon the level of need which is experienced by the proposed ward.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at

208 McCown Street

in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see-