Guardians and Attorneys Ad Litem
Chapter 1054 of the Texas Estates Code provides for the appointment of attorneys and guardians ad litem. The court must appoint an attorney or guardian ad litem in certain situations and has the discretion and authority to appoint one or both in others. See Tex. Est. Code §§ 1054.001, 1054.051.
Additionally, a court may appoint either an attorney ad litem or a guardian ad litem in several other contexts, including:
Guardian Ad Litem:
•Personal Injury Actions (Tex. R. Civ. P. 173)
•Trust Construction or Modification Actions (Tex. Prop. Code § 115.014)
•Disclaimers (Tex. Est. Code §§ 122.001–.101)
•Partition Actions (Tex. Est. Code § 360.102(1)(B), (C))
•Sports and Entertainment Contracts Entered Into by Minors (Tex. Est. Code § 1356.056)
•Inspection by Guardian of Ward’s Estate Planning Documents (Tex. Est. Code § 1162.008)
•Proper Investment by Guardian (Tex. Est. Code § 1161.007)
Attorney Ad Litem:
•Mental Health Commitments (Tex. Health & Safety Code § 574.004)
•Restoration/Modification of Guardianship (Tex. Est. Code § 1202.101)
•Removal of Community Administrator (Tex. Est. Code § 1353.151)
•Heirship Determinations (Tex. Est. Code §§ 53.104, 202.009)
•Probate of Will After Four Years (Tex. Est. Code § 258.052)
•Purchase of Estate Property by Guardian (Tex. Est. Code § 1158.653)
•Establishment of Pooled Trust Subaccount (Tex. Est. Code § 1302.003)
•Final Settlement of Guardianship Estate (Tex. Est. Code §§ 1204.001(e), 1204.002)
•Discretionary Appointments (Tex. Est. Code §§ 53.104, 1162.008)
Guardian Ad Litem and Attorney Ad Litem:
•Judicial Bypass Proceedings (Tex. Fam. Code § 33.003(e))
•Family Code Appointments (Tex. Fam. Code §§ 107.001–.0161)
•Sale of Minor’s Interest in Property (Tex. Est. Code § 1351.001(b))
•Show Cause and Compliance Actions (Tex. Est. Code § 1203.051)
§ 6.2Limitations on Guardians and Attorneys Ad Litem
It is important to understand the basic differences between the roles, responsibilities, and duties of the attorney ad litem and guardian ad litem. It is equally important to recognize the limitations imposed on them.
§ 6.2:1Limitations Imposed by Law
The ad litem cannot take any action to waive or prejudice any substantial right of the ward or proposed ward. See Reasoner v. State, 463 S.W.2d 55, 59 (Tex. App.—Houston [14th Dist.] 1971, writ ref’d n.r.e.) (minor not bound by ad litem’s admission); see also Berry v. Lowery, 266 S.W.2d 917, 922 (Tex. App.—Dallas), aff’d in part and rev’d in part on other grounds, 269 S.W.2d 795 (Tex. 1954) (ad litem cannot waive right of minor). Thus, an attorney ad litem may not waive service of process or other significant rights of a proposed ward. See Wright v. Jones, 52 S.W.2d 247, 250–51 (Tex. Comm’n App. 1932, holding approved).
Further, the authority of an attorney ad litem or guardian ad litem to act is limited to the proceeding in which he is appointed. Barrow v. Durham, 574 S.W.2d 857, 860 (Tex. App.—Corpus Christi–Edinburg 1978), aff’d, 600 S.W.2d 756 (Tex. 1980). An ad litem cannot institute, intervene in, or represent a ward in any matter inconsistent with the order of appointment. The actions of an ad litem should not exceed the scope of the authority granted in the order of appointment. See Pleasant Hills Children’s Home of the Assemblies of God, Inc. v. Nida, 596 S.W.2d 947, 951 (Tex. App.—Fort Worth 1980, no writ).
Several cases, discussed in section 6.8 below, define the compensable and noncompensable elements for ad litem fees in personal injury actions, family law cases, and guardianships. While some of these cases do not involve appointments under the Estates Code, the basic responsibilities of the attorney ad litem and guardian ad litem are equally applicable. An ad litem generally will not be compensated for the performance of any work performed beyond the scope of the ad litem’s appointment. See section 6.8 below for a complete discussion of ad litem fees.
§ 6.2:2Limitations Imposed by Court Order
The courts may impose limits on the role of an attorney or guardian ad litem in a guardianship proceeding, such as appointing a guardian ad litem for the limited purpose of reviewing a particular application, motion, or issue before the court. A court, however, should not attempt to limit the statutory duties prescribed by section 1054.004 of the Estates Code on an attorney ad litem appointed to represent a proposed ward. See sections 6.4:3 and 6.4:4 below.
An attorney ad litem is subject to the same ethical rules and considerations as any other attorney. Therefore, the ad litem cannot engage in ex parte communications with the judge presiding over the guardianship proceeding. The Texas Code of Judicial Conduct provides that a judge “shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and . . . a guardian or attorney ad litem.” Tex. Code Jud. Conduct, Canon 3B(8), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. B.
Because the question of capacity is the central issue in the guardianship proceeding, rule 1.02(g) of the Texas Disciplinary Rules of Professional Conduct should not be perceived as an impediment or limitation on the attorney ad litem’s duty to zealously advocate for his client. Rule 1.02(g) states:
A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.
Tex. Disciplinary Rules Prof’l Conduct R. 1.02(g), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art X, § 9).
However, compensation for the attorney ad litem is subject to findings by the court awarding compensation that the ad litem’s action’s for which compensation is sought were equitable and just. Tex. Est. Code § 1155.151(a–1). Cf. Goodyear Dunlop v. Gamez, 151 S.W.3d 574 (Tex. App.—San Antonio 2004, no pet.); Ford Motor Co. v. Aguilar, No. 13-16-00290-CV, 2017 WL 541117 (Tex. App.—Corpus Christi–Edinburg, February 9, 2017, no pet.).
Proposed Change to Disciplinary Rules of Professional Conduct Regarding Clients with Diminished Capacity: The State Bar Committee on Disciplinary Rules and Referenda (established as part of the reauthorization of the State Bar Act following the Sunset Review process in 2017) has proposed changes to three disciplinary rules affecting lawyers who work with those with diminished capacity:
1.Repeal of current Rule 1.02(g), which requires a lawyer to take reasonable action to secure the appointment of a guardian or other legal representative, or seek other protective orders, for a client the lawyer reasonably believes lacks legal competency. See Tex. Disciplinary Rules Prof’l Conduct R. 1.02.
2.Addition of Rule 1.05(c)(9) to allow a lawyer to reveal confidential information in order to secure legal advice about the lawyer’s compliance with the rules.
3.Addition of Rule 1.16, dealing solely with clients with diminished capacity. The text of the proposed rule was published in the September 2018 Texas Bar Journal:
Rule 1.16 Clients with Diminished Capacity
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for another reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action. Such action may include, but is not limited to, consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, attorney ad litem, amicus attorney, or conservator, or submitting an information letter to a court with jurisdiction to initiate guardianship proceedings for the client.
(c) When taking protective action pursuant to (b), the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests.
81 Tex. B.J. 623 (2018).
Proposed rule 1.16 closely follows the language of rule 1.14 of the Model Rules of Professional Conduct of the American Bar Association. See www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_14_client_with_diminished_capacity/.
The proposed rule changes have undergone a public hearing and comment period and have been approved by the State Bar’s board of directors as of April 2019. Implementation of the changes is pending approval of other proposed changes for a packaged submission to the Texas Supreme Court with a request that the court hold a referendum on them.
In addition, an attorney ad litem is subject to all the other rules of ethics, including, but not limited to, the duty to maintain the proposed ward’s confidence. In fact, when an attorney ad litem retains a psychiatrist to provide an expert opinion as to capacity, the assessment and testimony are privileged. In re Houseman, 66 S.W.3d 368 (Tex. App.—Beaumont 2002, no pet.).
Note that the decision of Franks v. Roades, 310 S.W.3d 615 (Tex. App.—Corpus Christi–Edinburg, 2010, no pet.), has created some confusion relating to an attorney ad litem’s role in a guardianship. Franks involved a situation in which an attorney who believed his client was incapacitated and in need of a guardian pursued a guardian over her objection and represented the guardian. The attorney was found not to have breached his duty of loyalty to his client because of rule 1.02(g) of the Texas Disciplinary Rules of Professional Conduct. But the attorney in Franks was not the proposed ward’s attorney ad litem and thus did not involve a court appointed attorney refusing to defend his client in a situation where the issue of capacity was central to the attorney’s appointment. Thus, an attorney ad litem in a guardianship proceeding should not assume that Franks authorizes him to file his own guardianship in contradiction to the proposed ward’s instructions.
An attorney ad litem is an attorney appointed by the court to represent and advocate on behalf of a proposed ward, an incapacitated person, an unborn person, or another person described in Texas Estates Code section 1054.007 in a guardianship proceeding. Tex. Est. Code § 1002.002. The court must appoint an attorney ad litem to represent the interests of the proposed ward in every guardianship proceeding seeking the appointment of a guardian. See Tex. Est. Code § 1054.001. An attorney ad litem may also be appointed to represent a ward subsequent to the ward’s adjudication of incapacity. As mentioned in section 6.2:2 above, the duties and responsibilities of an attorney ad litem depend on the basis of the appointment.
The court is required to appoint an attorney ad litem in a guardianship proceeding seeking to adjudicate a person to be either partially or totally incapacitated or in a matter relating to the sale of a ward’s guardianship assets to the guardian individually. Tex. Est. Code §§ 1054.001, 1202.101, 1158.653. Failure to appoint an attorney ad litem when required by law may result in a void or voidable judgment. See Cook v. Winters, 645 F. Supp. 158 (S.D. Tex. 1986). The court has the discretion to appoint an attorney ad litem in other situations.
Procedure for Appointment: In some courts, the applicant is expected to file a motion and order to appoint an attorney ad litem when the initial application for guardianship is filed. However, other courts prefer to appoint the attorney ad litem on their own motion. Only attorneys who have completed the State Bar of Texas certification training are eligible for appointment. Tex. Est. Code § 1054.201.
Appointments by the court of attorneys ad litem, guardians ad litem, mediators, and attorneys who are private professional guardians shall, with certain exceptions, be made using a “next-up” rotation system from lists to be promulgated and maintained by the local administrative judge. Tex. Gov’t Code §§ 37.001–.005.
Exceptions to this requirement include persons not on the maintained lists who are appointed by agreement of the parties and approval of the court; persons with specialized education, training, certification, skill, language proficiency, or knowledge of the subject matter; persons with relevant prior involvement; or persons located in a relevant geographic location. Tex. Gov’t Code § 37.004(c), (d).
A 2019 amendment allows the court to appoint a person included on the applicable list whose name does not appear first on the list or a person who meets statutory or other requirements to serve and who is not included on the list if, within thirty days preceding the date of appointment, an initial declaration of a state of disaster is made for the area served by the court. Tex. Gov’t Code § 37.004(d–1). A declaration of a state of disaster is made by the governor pursuant to Tex. Gov’t Code ch. 418. Tex. Gov’t Code § 418.014.
The lists are to be posted annually at the courthouse and be made available on the county’s website. Tex. Gov’t Code § 37.005.
See forms 6-1 through 6-4 in this chapter.
Certification Requirements: An attorney ad litem, as well as the attorney for the applicant in a guardianship proceeding, must be certified by the State Bar of Texas or a person or other entity designated by the State Bar as having completed a course of study on guardianship law and procedure. See Tex. Est. Code § 1054.201(a). Currently, certification requires four hours of credit, including one hour on alternatives to guardianship and supports and services available to proposed wards. Tex. Est. Code § 1054.201(b). The attorney may fulfill this requirement either by attending a seminar or viewing a video recording of the seminar. Many local bar associations offer courses or videos that satisfy the certification requirements. The attorney should forward a copy of the letter of certification to any local court having jurisdiction over guardianship matters. Generally, certification expires after two years, at which time the attorney must obtain a new certificate to be eligible for appointment in a guardianship proceeding. Tex. Est. Code §§ 1054.202(a), 1054.203. However, a new certificate obtained by an attorney who has already been certified expires after four years if the attorney has been certified for each of the four years immediately preceding the date the new certificate was issued. Tex. Est. Code § 1054.202(b).
Certification is required of any attorney seeking to represent the ward in any guardianship proceeding. Tex. Est. Code § 1054.201. Certification is also required for an attorney representing the ward on appeal. In re Guardianship of Marburger, 329 S.W.3d 923, 930 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.).
Similarly, private counsel retained by a ward or proposed ward pursuant to Texas Estates Code section 1054.006 must have a current certification under Tex. Est. Code § 1054.201.
Practice Pointer: A recent opinion from the Houston First Court of Appeals, In re Kelm, 569 S.W.3d 232 (Tex. App.—Houston [1st Dist.] 2018, no pet.), held that the State Bar guardianship certification of attorneys did not apply to retained counsel if an attorney ad litem has been appointed and is appropriately certified. The State Bar of Texas Real Estate, Probate and Trust Law Section attempted to address this issue legislatively in the 2019 session; however, the proposed bill (S.B. 667) was vetoed by the governor.
The better course of action in a similar fact situation might be for the attorney ad litem to file a Rule 12 motion (see section 10.3 in this manual) to better crystalize the issue for the trial judge and the court of appeals.
Term of Appointment: The term of appointment of an attorney ad litem expires, without a court order, on the date the court either appoints a guardian or successor guardian or denies application for appointment of a guardian, unless the court determines that continued appointment of the attorney ad litem would be in the ward’s best interest. The term of an appointment for an ad litem appointed under Texas Estates Code section 1054.001 continues after the appointment of a temporary guardian unless the court order provides for termination or expiration of the appointment. Tex. Est. Code § 1054.002.
It is an abuse of discretion for a trial court to appoint an attorney ad litem in any phase of a guardianship proceeding who has not been certified pursuant to the statutory requirements. In re Guardianship of Marburger, 329 S.W.3d at 930; see Tex. Est. Code § 1054.201.
§ 6.4:3Statutory Duties in Proceeding to Appoint Guardian
The statutory duties of an attorney ad litem appointed to represent a proposed ward in a guardianship proceeding are set out in Texas Estates Code section 1054.004.
Review Application and Court File: The attorney ad litem should review the court’s file, including the application for guardianship and the order appointing the ad litem, to determine any specific directives given to the ad litem, if the proposed ward was properly served, if the return has been on file ten days, if notice to third parties has been properly given, and if the matter has already been set for hearing by the court. See Tex. Est. Code ch. 1051.
Request and Review Medical History and Records: Before any hearings, the attorney ad litem must review the proposed ward’s medical records detailing his history and current prognosis. Tex. Est. Code § 1054.004(b). Generally, the applicant’s attorney should provide the attorney ad litem with copies of all the current pleadings and filings, as well as access to the proposed ward’s relevant medical, psychological, and intellectual testing records. If the applicant’s attorney does not provide the attorney ad litem with these records, the attorney ad litem should promptly request them. If the records are not provided within a reasonable time, it is prudent for the attorney ad litem to apply to the court for an order directing the release of the records. See Tex. Est. Code § 1054.003. Under the federal Health Insurance Portability and Accountability Act (HIPAA), 45 C.F.R. §§ 160.101–.552, 160.101–.105, 160.500–.552, many of these records are considered “protected health information.” Also, because 45 C.F.R § 164.512(e)(1)(i) specifically authorizes disclosure of protected health information in judicial or administrative proceedings in response to a court order, the order appointing the attorney ad litem should include language citing this provision, and language authorizing access to confidential information under the Privacy Act of 1974 (5 U.S.C. 552a) and Veterans Administration Records (38 U.S.C. 5701, 7332). The order should also specify that the ad litem so appointed is an officer of the court. See also forms 6-20 through 6-23 in this chapter. The attorney ad litem should verify that, if needed, the physician’s letter or certificate supporting the guardianship is dated not earlier than the 120th day before the date of filing of the application and additionally verify by examining the medical records that the physician actually performed examination of the proposed ward not earlier than that same day. See Tex. Est. Code § 1101.103(a). If the proposed ward is alleged to be intellectually disabled, he must be examined by a physician or psychologist licensed in Texas or certified by the Texas Department of Aging and Disability Services to perform such examinations, unless there is written documentation filed with the court that the proposed ward has been examined according to the rules adopted by the Health and Human Services Commission not earlier than twenty-four months before the hearing. Tex. Est. Code § 1101.104. See form 4-1 in this manual for a certificate of medical examination.
Interview and Assess Proposed Ward: An attorney ad litem must interview the proposed ward within a reasonable time before the hearing. The attorney ad litem should discuss with the proposed ward the law and facts of the case, the proposed ward’s legal options regarding disposition of the case, the grounds on which the guardianship is sought, and whether alternatives to guardianship, as referenced in Tex. Est. Code § 1002.015 (a nonexclusive listing), would meet the needs of the proposed ward and avoid the need for the appointment of a guardian. Tex. Est. Code § 1054.004(a). The attorney ad litem should inform the proposed ward that he is entitled, on request, to a jury trial. See Tex. Est. Code § 1101.052. The attorney ad litem should also advise the proposed ward of the ward’s bill of rights under Tex. Est. Code § 1151.351. See section 4.29:1 and form 4-15 in this manual.
Before the hearing, the attorney ad litem shall discuss with the proposed ward the attorney ad litem’s opinion regarding (1) whether a guardianship is necessary for the proposed ward; and (2) if a guardianship is necessary, the specific powers or duties of the guardian that should be limited if the proposed ward receives supports and services. Tex. Est. Code § 1054.004(a).
The “Judicial Determination of Capacity of Older Adults in Guardianship Proceedings,” a capacity assessment handbook that is a collaborative effort of the American Bar Association Commission on Law and Aging, the American Psychological Association, and the National College of Probate Judges is a valuable resource for the attorney ad litem and is available at no cost at www.americanbar.org/groups/law_aging/publications/. It examines the issue of capacity from several standpoints and is designed to assist judges in understanding the concept of incapacity. See also Steve M. King, Levels of Incapcity, in Advanced Guardianship Law Course, State Bar of Texas (2015).
Be an Advocate: The attorney ad litem is the proposed ward’s attorney, whose job is to advocate for the proposed ward. Thus, the attorney ad litem for the proposed ward must decide whether to actively contest the application or to simply ensure that the applicant and his counsel make a prima facie case. The question is easy when the proposed ward is in a persistent vegetative state after a traumatic brain injury or is suffering from advanced Alzheimer’s-related senile dementia. When the proposed ward is only occasionally confused or is refusing medical treatment that is discretionary, the role of the attorney ad litem is much more acute. If the proposed ward is opposed to the guardianship, the attorney ad litem must oppose it. That is his job. An attorney ad litem is not appointed as “window-dressing” to an immutable procedure. Further, section 1.02(g) of the Texas Disciplinary Rules of Professional Conduct should not be viewed as a restraint on the attorney ad litem. Because the question of capacity has already been brought to the attention of the court, section 1.02(g) is not an impediment or limitation on the attorney ad litem’s duty to zealously advocate for his client. But see Franks v. Roades, 310 S.W.3d 615 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.).
Practice Pointer: Given the clear purpose clause of the guardianship provisions of the Estates Code (Tex. Est. Code § 1001.001), a less restrictive alternative, if appropriate is to be followed. The attorney ad litem (as well as both the attorney for the applicant and the guardian ad litem) need to bear this in mind as the court will certainly consider the appropriateness and availability of less restrictive alternatives in determining what actions of the attorneys are reasonable and necessary when the issue of attorney’s fees are ultimately addressed.
Finally, it is generally not appropriate to file a report of attorney ad litem with the court. The attorney ad litem is an advocate. If the attorney ad litem files a report, this may cause him to become a fact witness.
§ 6.4:4Nonstatutory Duties in Proceeding to Appoint Guardian
In addition to the statutory duties, the attorney ad litem has other duties necessary to represent the interests of the proposed ward.
Prepare and File Answer: The attorney ad litem should prepare and file an answer to the guardianship application. In most cases, it is sufficient to file a general denial. The burden of proof should be properly pleaded. See form 6-5 in this chapter.
Practice Pointer: If the attorney is actively contesting the application, it would be better to file an answer pleading any affirmative defenses and clearly identifying whether the proposed ward objects to the guardianship, the proposed guardian, or both. In addition to serving a copy of the answer on opposing counsel, it would be advisable to send a copy to the court investigator.
Consider Requesting Security for Costs: If the guardianship proceeding appears frivolous, the attorney ad litem should consider filing a motion for security for costs under Tex. Est. Code § 1053.052. See forms 6-8 and 6-9. The court may then order the applicant-contestant to post security for costs. If the party fails to comply with the court’s order, the attorney ad litem may file a motion to dismiss for failure to post the required security. See forms 6-10 through 6-12. Although previous case law limited the statutory authority to tax costs in guardianship proceedings, recent amendments to the Estates Code specifically authorize judges to tax costs and require reimbursement of attorneys’ fees of persons found to have acted without good faith or just cause. Tex. Est. Code §§ 1053.052, 1155.054. See sections 10.4:2–10.4:6 in this manual.
Consider Requesting Appointment of Guardian Ad Litem: If, in the ethical exercise of the duties of the attorney ad litem, it appears that the court may not be getting a full picture of the factual and legal issues underlying the guardianship application or any contest (absent a breach of the duty of confidentiality), the attorney ad litem should consider asking the court to appoint a guardian ad litem to act in the best interests of the proposed ward.
Consider Requesting Independent Medical Examination: The applicant is required to obtain a letter or certificate from a Texas physician or, in some limited circumstances, a psychologist that meets the requirements of Texas Estates Code section 1101.103. The various Texas statutory probate courts now have a form that is approved in all these courts. See form 4-1 in this manual. If the attorney ad litem believes the medical information is inadequate or incorrect, he may seek either or both a court-ordered independent mental or physical examination. Because the legislature provided a specific procedure to be followed in this regard, a motion for an independent medical examination under Tex. R. Civ. P. 204 is not available in a guardianship proceeding. Karlen v. Karlen, 209 S.W.3d 841 (Tex. App.—Houston [14th Dist.] 2006, no pet.). See Tex. Est. Code § 1101.103(c). See forms 6-6 and 6-7. Psychological testing can also be a useful tool to determine function, ability, and judgment of a proposed ward and may be authorized in conjunction with a mental examination. It is advisable to have any independent medical examination performed by a physician with a different specialization than the first examination (for example, neurologist vs. gerontologist vs. psychiatrist).
Verify Medical Disclosure: The attorney ad litem should determine whether the medical professional who examined the proposed ward either obtained the proposed ward’s permission to release the ward’s medical information or warned the proposed ward that he intended to disclose the results of the examination. Rule 510(d)(4) of the Texas Rules of Evidence requires a “Miranda”-type warning advising the proposed ward that anything he may say to the professional is not confidential. This disclosure is necessary even if the exam is court-ordered. See Subia v. Texas Department of Human Services, 750 S.W.2d 827, 830–31 (Tex. App.—El Paso 1988, no writ). If proper disclosure has been given, the court may find that the discussions are not privileged, and the health-care professional may testify about them. See Dudley v. State for Dudley, 730 S.W.2d 51, 54 (Tex. App.—Houston [14th Dist.] 1987, no writ). But if the health-care professional fails to make this disclosure, the attorney ad litem may seek to exclude all of the professional’s testimony. However, see In re Guardianship of Parker, 275 S.W.3d 623 (Tex. App.—Amarillo 2008, no pet.), which held that evidentiary objections to the certificate of medical exam were insufficient to exclude it from consideration if the statute indicated a legislative intent that the certificate be considered by the court before any guardianship could be granted.
Meet and Confirm Age of Minor: If the proposed ward is alleged to be a minor, the attorney ad litem should confirm the minor’s age and the need for an appointment of a guardian. The attorney ad litem should also meet the child and, if possible, examine the child’s living conditions.
Verify Applicant’s Eligibility: The attorney ad litem should determine whether the person seeking to be appointed guardian is appropriate and eligible, the extent and nature of the proposed ward’s estate (this will also be useful in setting the bond), and whether the applicant owes money to or has been taking financial advantage of the proposed ward. The attorney ad litem should also request a copy of the applicant’s criminal background check that is now required to be submitted before appointment.
Prepare for Hearing: The attorney ad litem should notify the proposed ward in advance of the position to be advocated in court and should prepare the proposed ward to testify, if necessary.
Arrange for Proposed Ward to Attend Hearing: The proposed ward must attend any hearing to establish a guardianship unless the court determines that a personal appearance is not necessary. Tex. Est. Code § 1101.051(b). Courts generally require the attorney ad litem to arrange for the proposed ward to attend this hearing. The attorney ad litem should make an initial determination whether the proposed ward is able to attend. If the proposed ward does not attend the hearing, the attorney ad litem should be prepared, either by personal knowledge or by calling the proposed ward’s physician or other appropriate witnesses, to testify why the proposed ward’s presence in the courtroom is not necessary. It is also appropriate to ask the treating physician to address the ward’s ability to attend a hearing in the doctor’s letter or certificate provided to the court. The certificate of medical examination (form 4-1) includes a provision to address this matter.
Methods to show that the proposed ward’s presence at a hearing would not be in his best interests include the following:
•A physician’s letter or certificate stating the medical reasons why the proposed ward’s presence is not advisable.
•A written statement by the proposed ward expressing a desire not to appear.
•A tape recording of the proposed ward’s statement (with court and counsel’s permission).
•A telephonic appearance (with court permission) if the proposed ward is physically unable to attend.
•Statement by the ad litem of the proposed ward’s lack of desire or ability to attend.
Closed Hearing: An attorney ad litem has a right to request that the courtroom be closed to the public at the hearing for appointment of a guardian. Tex. Est. Code § 1101.051(c). Such a request is to protect the privacy of the proposed ward.
§ 6.4:5Role of Attorney Ad Litem after Appointment of Guardian
Duty to Defend Client’s Rights: Generally, at the completion of the guardianship hearing, the attorney ad litem is discharged by operation of law. Tex. Est. Code § 1054.002. See forms 6-13 and 6-14 in this chapter. The appointment of the attorney ad litem does not, however, always cease with the appointment of a guardian. The court may, in the order appointing a guardian, specifically provide that the attorney ad litem will continue to represent the ward. Tex. Est. Code § 1054.002. The terms and conditions of this continued appointment should be specifically set forth in the order.
Guardian Purchasing Guardianship Assets: If a guardian seeks to purchase property from the ward’s estate, the court must appoint an attorney ad litem to represent the ward in the proposed sale. See Tex. Est. Code § 1158.653. The attorney ad litem should review the application relating to the sale and other information as necessary to determine if the sale is fair and in the ward’s best interests.
Final Settlement of Ward’s Estate: Several events or circumstances will trigger the closing of a guardianship. See Tex. Est. Code §§ 1204.001, 1204.051, 1204.052, 1204.101, 1204.102, 1204.108. If appropriate, the court may appoint an attorney ad litem to represent the ward or the ward’s estate in matters relating to a guardian’s account for final settlement. See Tex. Est. Code §§ 1204.001(e), 1204.002. See form 6-15.
A guardian ad litem is a person appointed by the court to represent the best interests of a ward or proposed ward in a guardianship proceeding. Tex. Est. Code § 1002.013. In practice, a guardian ad litem is essentially a fact finder who assists the court in determining what is in the ward’s or proposed ward’s best interests. A guardian ad litem takes on the role of an officer of the court, rather than the role of the proposed ward’s attorney. In this role, he can make recommendations based on what he perceives to be in the proposed ward’s best interests, rather than having to advocate any party’s particular position. In representing the best interests of the proposed ward, appellate courts have made it clear that the guardian ad litem serves as the personal representative for the proposed ward and not the ward’s attorney. See, e.g., Magna Donnelly Corp. v. Deleon, 267 S.W.3d 108 (Tex. App.—San Antonio 2008, no pet.); Patterson v. McMickle, 191 S.W.3d 819 (Tex. App.—Fort Worth 2006, no pet.); Goodyear Dunlop v. Gamez, 151 S.W.3d 574, 582–85 (Tex. App.—San Antonio 2004, no pet.); Coleson v. Bethan, 931 S.W.2d 706, (Tex. App.—Fort Worth 1996, no pet.); Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App.—Dallas 1994, writ dism’d by agr.).
A person may not be appointed guardian if the person:
(1)Is a party or is a person whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward, unless the court
(A)determines that the lawsuit claim of the person who has applied to be appointed guardian is not in conflict with the lawsuit claim of the proposed ward; or
(B)appoints a guardian ad litem to represent the interests of the proposed ward throughout the litigation of the ward’s lawsuit claim.
The guardian ad litem shall protect the incapacitated person in a manner that will enable the court to determine what action will be in the best interests of the incapacitated person. See Tex. Est. Code § 1054.054(b).
The court has discretion to appoint a guardian ad litem to represent the best interests of an incapacitated person in a guardianship proceeding. See Tex. Est. Code § 1054.051. In the interest of judicial economy, the court may instead appoint the attorney ad litem under Code section 1054.001 to additionally serve as the guardian ad litem. Tex. Est. Code § 1054.052. However, if an attorney is appointed as both an attorney ad litem and a guardian ad litem before a guardian has been appointed, he may be faced with an inherent conflict of interest.
If the appointment would be in the best interests of the proposed ward, the court may also appoint a guardian ad litem if the court determines that the person who has applied to be appointed guardian is a party to a lawsuit concerning or affecting the welfare of the proposed ward. See Roark v. Mother Frances Hospital, 862 S.W.2d 643, 647 (Tex. App.—Tyler 1993, writ denied) (guardian ad litem required to participate in case to extent necessary to protect ward).
Procedure for Appointment: Any party, including the attorney ad litem, may seek the appointment of a guardian ad litem. The court may also appoint a guardian ad litem on its own motion. The court will appoint a guardian ad litem if it determines that the appointment could be beneficial to the court or the proposed ward. The court will generally enter an order setting forth the scope of the guardian ad litem’s duties in the proceeding. See form 6-16 in this chapter.
The same requirements for maintenance of an appointments list discussed in section 6.4:2 above apply to the appointments of guardians ad litem. Tex. Gov’t Code §§ 37.001–.004.
Certification Requirements: A court may appoint any person as guardian ad litem for a proposed ward. Unlike an attorney ad litem, a guardian ad litem is not subject to any certification requirements and may not even be an attorney.
Term of Appointment: The term of appointment of a guardian ad litem expires, without a court order, on the date the court either appoints a guardian or denies application for appointment of a guardian, unless the court determines that continued appointment of the guardian ad litem would be in the ward’s best interest. Tex. Est. Code § 1054.053.
§ 6.5:3Statutory Duties in Proceeding to Appoint Guardian
A guardian ad litem is appointed as an officer of the court to represent the interests of the proposed ward. Tex. Est. Code § 1054.051. A guardian ad litem’s statutory duties include (1) protecting, rather than advocating for, the proposed ward to “enable the court to determine the action that will be in that person’s best interest” (Tex. Est. Code § 1054.054(b))); (2) investigating whether a guardianship is necessary for the proposed ward; and (3) evaluating alternatives to guardianship and supports and services available to the proposed ward that would avoid the need for appointment of a guardian (Tex. Est. Code § 1054.054(c)). See section 3.33 and the appendix in this manual for additional discussion of supports and services.
§ 6.5:4Nonstatutory Duties in Proceeding to Appoint Guardian
Because limited statutory guidance exists, a guardian ad litem must rely on common sense, experience, and case law while carrying out his duties. In Goodyear Dunlop v. Gamez, the San Antonio appeals court held that a guardian ad litem has the duty to act as the personal representative of the minor, rather than as the attorney for the minor. This holding clearly implies that, as a personal representative, the guardian ad litem takes on the fiduciary responsibilities attendant to the appointment of any personal representative, but subject to the terms of the specific appointment. See Goodyear Dunlop v. Gamez, 151 S.W.3d 574 (Tex. App.—San Antonio 2004, no pet.), and the cases cited therein. Some of the more common actions are discussed below; however, this should not be seen as an all-inclusive list.
Review Application and Court File: The guardian ad litem, like the attorney ad litem, should promptly review the court’s file.
Prepare and File Notice of Appearance: The guardian ad litem commonly files a notice of appearance in the guardianship proceeding. It is not necessary to file an answer because the guardian ad litem is not an attorney in the proceeding.
Request and Review Medical History and Records: Like an attorney ad litem, the guardian ad litem should promptly request and review the proposed ward’s medical records. These records provide information about the proposed ward’s medical history and current prognosis that will be necessary for the guardian ad litem to make appropriate recommendations to the court. Because of privacy guidelines, the order appointing the guardian ad litem should include language that authorizes the disclosure of protected health information (Health Insurance Portability and Accountability Act language). Alternatively, an authorization for release of protected health information or a motion to compel these records should be filed. See 45 C.F.R. §§ 160.103, 164.508, 164.512 regarding requirements under HIPAA. See also discussion at section 6.4:3 above and forms 6-20 through 6-23 in this chapter.
Contact Proposed Ward’s Physician: If there is a question as to capacity, the guardian ad litem may contact the proposed ward’s physician or other care provider to determine the extent of a proposed ward’s incapacity.
Interview and Assess Proposed Ward: The guardian ad litem should always meet the proposed ward and the applicant. By meeting the proposed ward, the guardian ad litem gains firsthand knowledge of the proposed ward’s abilities and potential incapacities and is able to verify the environment in which the proposed ward is residing pending appointment of a guardian. If the visit raises concerns about the proposed ward’s living environment or safety, the guardian ad litem may promptly act to protect the proposed ward. For example, if he believes the proposed ward is in imminent danger, a guardian ad litem may seek the appointment of a temporary guardian or may seek his own appointment as guardian. To act in the best interest of the proposed ward, the guardian ad litem should also assess the capacity of the proposed ward. See the discussion at section 6.4:3 above regarding available materials for capacity assessment.
Meet Applicant and Verify Eligibility of Proposed Guardian: The guardian ad litem should interview the applicant before the hearing to determine whether the person seeking to be appointed guardian is qualified and eligible. The guardian ad litem should also determine the extent and nature of the ward’s estate. Additionally, the guardian ad litem should verify that the applicant seeking appointment does not have an interest adverse to the proposed ward and is not otherwise disqualified to serve (that is, whether the applicant owes money to or has been taking financial advantage of the proposed ward). See Tex. Est. Code §§ 1055.001, 1104.351–.358. This meeting also allows the guardian ad litem to verify that the applicant understands the duties and responsibilities of a guardian and has the requisite education and experience—or competent counsel to assist the applicant—to meet these duties and responsibilities.
Consider Requesting Independent Medical Examination: If the guardian ad litem believes the medical information is inadequate or incorrect, he may seek either or both a court-ordered independent mental or physical examination. See Tex. Est. Code § 1101.103(c).
Consider Seeking Security for Costs: A proceeding to seek security for costs can assist the guardian ad litem if the proposed ward is being harassed. See forms 6-8 and 6-9 in this chapter. See also sections 6.4:4 and 10.2:5–10.4:6.
Prepare and File Motion in Limine: If the guardian ad litem determines that an applicant may have an interest adverse to the proposed ward or may be disqualified to serve, the guardian ad litem may prepare and file a motion in limine with the court and seek a ruling on the motion. The motion in limine brings the issue of the applicant’s standing and disqualification to the attention of the court. Tex. Est. Code § 1055.001(c). See form 10-4 in this manual.
Prepare and File Application for Guardianship: In certain cases, the guardian ad litem may need to prepare and file his own application for guardianship. For example, the guardian ad litem may have been appointed initially in a temporary guardianship proceeding, and no party has moved to appoint a permanent guardian. Alternatively, the guardian ad litem may have filed a motion in limine against the applicant. If the guardian ad litem is successful, the applicant’s pleadings will be stricken from the record regardless of whether a guardianship is required. In these cases, the guardian ad litem should consider filing his own application to appoint a guardian if he determines the appointment is in the proposed ward’s best interests.
Determine Preference of Proposed Ward: The guardian ad litem should determine the proposed ward’s preference of a guardian. However, the guardian ad litem is under no duty to recommend the person selected by the proposed ward, if it is not in the proposed ward’s best interests or if the proposed guardian is ineligible to serve.
Prepare and File Report of Findings and Recommendations: The information gathered by the guardian ad litem in the investigation of the need for guardianship is subject to examination by the court. Tex. Est. Code § 1054.054(d). Accordingly, most courts request or require that a guardian ad litem file a report setting forth findings and recommendations. The report will generally provide the court the following information—
1.a brief factual overview of the proposed ward’s personal and financial situation and relevant family history;
2.information regarding the applicant’s eligibility;
3.facts and information advising the court of the need for a guardianship, including any additional medical or personal information regarding the proposed ward’s capacity or incapacity;
4.the proposed ward’s preference of a guardian, if known;
5.an assessment of whether less restrictive alternatives to guardianship or supports and services are appropriate and available;
6.any other information obtained by the guardian ad litem that may assist the court in reviewing the application for guardianship; and
7.the guardian ad litem’s recommendations on whether a guardian is required and, if so, who should be appointed and the scope of the guardian’s powers.
Prepare for and Attend Hearing or Trial: The guardian ad litem, like the attorney ad litem, should prepare for and attend the hearing or trial. The guardian ad litem should be mindful not to exceed the scope of the appointment. See section 6.2:1 above.
§ 6.5:5Pending Litigation Involving Ward and Guardian
The court may appoint a guardian ad litem for the ward if the guardian is a party to a lawsuit concerning or affecting the welfare of the ward. Generally, the guardian ad litem will represent the interest of the ward throughout the litigation. Such an appointment is similar to the provision for appointment of a guardian ad litem under rule 173 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 173. Accordingly, the guardian ad litem should be familiar with the statutory and case law relevant to the pending lawsuit. If the lawsuit involves personal injury, wrongful death, or survivorship claims, the guardian ad litem should carefully consider his level of competence in these areas and must have sufficient knowledge to structure a possible settlement that is in the ward’s best interests. Otherwise, the guardian ad litem should consider seeking a discharge (or associating counsel) so that the court can appoint a more experienced advocate. The needs of a gravely injured incapacitated person can greatly exceed what many insurance companies are willing to place outside of the structured portion of a settlement. The ward may not survive until the annuity fully accumulates prior to its payment phase. In such cases, the failure to have negotiated a commutation rider in the annuity (which commutes the value of the remaining guaranteed payments on the death of an annuitant into a lump sum payment or percentage payment) could be viewed as malpractice.
On the filing of an application by the guardian to establish an estate plan, the court may appoint a guardian ad litem for the ward or any other interested person. Tex. Est. Code § 1162.008. The guardian ad litem should review the application to determine if the gifts are appropriate, considering the ward’s financial situation, the assets sought to be gifted, the effect of the gift on the ward’s current and future cash flow if posting on the application has occurred, the ward’s prior pattern of giving, and the investment plan required to be filed under section 1162.001 of the Estates Code. If available, the guardian ad litem may also review the ward’s will to determine if the gifting would adeem any gifts under the ward’s will in a manner inconsistent with its current terms. See part VII. in chapter 8 of this manual for more information on estate plans.
The court has the discretion to appoint or replace a guardian ad litem. Urbish v. 127th Judicial District Court, 708 S.W.2d 429, 431–32 (Tex. 1986). A court, on its own motion, may remove and replace an attorney ad litem on proper notice and hearing. Further, any party may move for the removal of the attorney ad litem and, on proper notice and hearing, seek an order of removal. See Coleson v. Bethan, 931 S.W.2d. 706, 712 (Tex. App.—Fort Worth 1996, no writ).
An ad litem’s appointment will usually terminate on the conclusion of the matter that resulted in the appointment, unless the order specifies otherwise. Tex. Est. Code § 1054.052. If an ad litem is appointed for another specific purpose, such as to review a pending application or cure a conflict between the guardian and ward under Tex. Est. Code § 1104.354(1)(B), the ad litem should be discharged after the specific function for which the ad litem was appointed or retained. The court should then enter an order discharging the ad litem. See forms 6-13 and 6-14 in this chapter. See also form 6-17 for an order vacating the appointment of an attorney ad litem.
§ 6.7:1Liability of Attorney Ad Litem
An attorney ad litem is a legal advocate for the ward or proposed ward. Thus, the attorney ad litem owes the same duty and professional responsibility to the ward or proposed ward as he would to any other client. Estate of Tartt v. Harpold, 531 S.W.2d 696, 698 (Tex. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). Just as in any other case, a breach of these duties and responsibilities can give rise to an action for legal malpractice.
In Ex Parte Parker, No. 07-12-00178-CV, 2014 WL 31253, at *4 (Tex. App.—Amarillo Jan. 3, 2014, no pet.), the appeals court noted that allegations of ineffective assistance of an appointed attorney ad litem would be reviewed under the same standard as in cases regarding termination of parental rights. The standard (applied by both the Texas Supreme Court and the U.S. Supreme Court) requires a complainant to demonstrate (1) that the counsel’s assistance fell below an objective standard of reasonableness and (2) that the ad litem’s deficient assistance prejudiced the ward’s case. Such allegations must be firmly founded in, and affirmatively demonstrated by, the court’s record. Ex Parte Parker, 2014 WL 31253, at *4.
In In re Guardianship of Humphrey, No. 12-07-00118-CV, 2009 WL 388955 (Tex. App.—Tyler Feb. 18, 2009, pet. denied), the appellants were required to raise the issue of the attorney ad litem’s ineffective assistance to the trial court.
§ 6.7:2Liability of Guardian Ad Litem
In contrast, a guardian ad litem does not serve as an attorney (although attorneys are not precluded from being appointed as guardians ad litem). A guardian ad litem’s liability, if any, is predicated on the nature of the order of appointment and the duties and responsibilities imposed by the court. If the order of appointment contemplates that the guardian ad litem act as an extension of the court, the appointee is immune from liability for actions taken within the scope of the appointment. See Delcourt v. Silverman, 919 S.W.2d 777, 786 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (guardian ad litem entitled to absolute judicial immunity when acting as arm of court); see also Tex. Est. Code § 1054.056, which provides for immunity from civil damages for a guardian ad litem (appointed under section 1054.051, 1102.001, or 1202.054) from recommendations made or opinions given as a guardian ad litem, except for statements in such recommendations or opinions that are willfully wrongful, reckless, in bad faith, malicious, or grossly negligent. The immunity is premised on the need for the guardian ad litem to be free to act and make impartial recommendations to the court without fear of a potential lawsuit. Cf. Kabbani v. Papadopolous, No. 01-07-00191, 2009 WL 4695466 (Tex. App.—Houston [1st Dist.] Feb. 26, 2009, pet. denied) (court upheld similar statutory immunity for guardian ad litem under Texas Family Code), and Wilz v. Sanders, No. 10-04-00007-CV, 2005 WL 428467 (Tex. App.—Waco Feb. 23, 2005, no pet.) (immunity of guardian ad litem upheld where appointed under federal statute).
On the other hand, depending on the duties imposed by the court in the order appointing the guardian ad litem, there may be liability for civil damages for a fiduciary breach of those duties. See Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App.—Dallas 1994, writ dism’d by agr.) (guardian ad litem appointed under rule 173 liable for breach of duty as minor’s personal representative in settlement proceedings). In Byrd, the court addressed these issues, and a careful reading by any attorney considering acting as an ad litem is highly recommended. In short, the court found that (1) a guardian ad litem’s role establishes a fiduciary relationship with the ward, (2) a guardian ad litem is not an agent of the court and therefore is not granted judicial immunity, and (3) no attorney-client relationship exists between a guardian ad litem and a ward. Byrd, 891 S.W.2d at 708–11; see also Roark v. Mother Frances Hospital, 862 S.W.2d 643, 647 (Tex. App.—Tyler 1993, writ denied) (recognizing the different roles between a guardian ad litem and an attorney and affirming trial court’s refusal to award any fees to guardian ad litem based on his performance of duties as plaintiff’s attorney).
Unlike a guardian ad litem appointed under Tex. R. Civ. P. 173, a guardian ad litem appointed in a guardianship proceeding has qualified judicial immunity if he is appointed to represent the interest of an incapacitated person in a guardianship proceeding involving the creation, modification, or termination of a guardianship. Tex. Est. Code § 1054.056.
In the context of litigation, the responsibility of the guardian ad litem is limited, and the guardian ad litem is generally not to participate in the underlying litigation (even reviewing the discovery or litigation files) except to the limited extent of the division of settlement proceeds. Jocson v. Crabb, 133 S.W.3d 268 (Tex. 2004) (per curiam), on remand, 196 S.W.3d 302 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A guardian ad litem may choose to actively participate in the litigation and discovery, but compensation is not to be awarded for that activity.
Only in extraordinary circumstances does the rule contemplate that a guardian ad litem will have a broader role. Even then, the role is limited to determining whether a party’s next friend or guardian has an interest adverse to the party that should be considered by the court under Tex. R. Civ. P. 44.
Unlike the immunity conferred for a guardian ad litem in a guardianship proceeding, there is no statutory immunity for a guardian ad litem appointed under the nonguardianship provisions of the Texas Estates Code or for a guardian ad litem appointed under the Property Code (see Tex. Prop. Code § 115.014). In those cases, the issue of possible derived judicial immunity must be examined. Derived judicial immunity affords an officer of the court the same immunity as a judge acting in his official capacity—absolute immunity for judicial acts performed in the scope of jurisdiction. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002). For an extended analysis of the issue of derived judicial immunity for ad litems, see Dani D. Smith, Attorney Ad Litems and Guardian Ad Litems: An Overview of the Roles and Liabilities in Non-Guardianship Cases, in Advanced Estate Planning and Probate Course, State Bar of Texas (2018).
§ 6.8:1Basis of Fees for Ad Litem
Section 1155.151 of the Texas Estates Code addresses the payment of professional services and provides that in a guardianship proceeding, the court costs of the proceeding including the cost of the guardians ad litem, attorneys ad litem, court visitor, mental health professionals, and interpreters appointed under this title, shall be set in amount the court considers equitable and just and, except as provided by subsection (c), shall be paid as follows: (1) out of the guardianship estate; (2) out of the management trust, if a management trust has been created for the benefit of the ward; (3) if there is no guardianship estate or no management trust has been created for the ward’s benefit or the assets of the guardianship estate or management trust are insufficient to pay the costs, by the party to the proceeding who incurred the costs, unless that party filed, on the party’s own behalf, a statement of inability to afford payment of court costs or an appeal bond under rule 145 of the Texas Rules of Civil Procedure (sometimes referred to as a pauper’s affidavit). Such a statement is applicable only if it is the applicant who has no ability to pay costs or is receiving governmental assistance based on indigence. It is not the proposed ward whose inability to pay is measured. See Tex. Est. Code § 1155.151.
The test for determining entitlement to proceed in forma pauperis is whether the record shows the appellant would be unable to pay “if he really wanted to and made a good-faith effort to do so.” Pinchback v. Hockless, 164 S.W.2d 19 (Tex. 1942). Typically, only the clerk or an ad litem have standing to contest the affidavit. At a hearing on such a contest, the filer of the affidavit has the burden of proof. Pinchback, 164 S.W.2d at 20.
Evidence of the inability to afford costs includes evidence that the declarant receives government benefits, or evidence that the declarant is being represented by an attorney who is providing free legal services through certain legal services providers. See Tex. R. Civ. P. 145. The statement at form 6-24 is based on the Texas Supreme Court’s promulgated affidavit, with a check box for “probate” added. The original form was promulgated because of abuses by some Texas counties in the attempted use of the pauper’s affidavit. Report of State Bar of Texas Poverty Law Section Affidavits and Statements of Inability to Pay Committee, available at http://povertylawsection.org/wp-content/uploads/2015/01/Report-Affidavits-and-Statements-of-Inability-to-Pay-committee-with-Exhibits-Final.pdf. The court shall then issue the judgment accordingly. See Tex. Est. Code § 1155.151(a).
Also, in a contested proceeding, on a finding that persons have acted without good faith or just cause, the judge is authorized to tax costs and require reimbursement of attorney’s fees (including the fees of the ad litems). Tex. Est. Code §§ 1053.052, 1155.054, 1155.151. See section 10.4:2 in this manual.
An attorney ad litem’s fee is generally based on the time expended in representing the ward or proposed ward. A guardian ad litem’s fee is based on the time expended in carrying out his duties. In either case, the fees and expenses are subject to court approval. Therefore, the ad litem must keep accurate records of the time expended in the case to be able to prove up reasonable and necessary fees and expenses. For ad litems appointed in counties that have issued fee standards, the ad litem should be familiar with the applicable standards adopted by that county. For example, Harris County probate courts adopted the Standards for Court Approval of Attorney Fee Petitions, which may be found online at www.harriscountytx.gov/probate/attorneyfees.aspx. In In re Guardianship of Hanker, No. 01-12-00507-CV, 2013 WL 3233251 (Tex. App.—Houston [1st Dist.] June 25, 2013, no pet.), the court’s published fee schedule (in this case, that of Galveston County) with guidelines and a range of hourly rates based on an attorney’s years of experience was upheld as a guide for the finder of fact to determine the reasonableness of the fees under the particular circumstances.
Compensation for a guardian ad litem, regardless of whether a guardianship is created, may be authorized by the court either from available funds from (1) the ward’s estate, (2) a management trust created for the benefit of the proposed ward under chapter 1301, if such trust has, in fact, been created, or (3) on a determination by the court that the proposed ward or the management trust is unable to pay for services provided by the guardian ad litem, the court may authorize compensation from the county treasury. Tex. Est. Code § 1102.005.
§ 6.8:2Evidence: Burden of Proof
The ad litem has the burden to apply for the fees and to appear and give sufficient evidence that the ad litem has stayed within the statutorily defined scope of the appointment, to establish the amount of time spent as an ad litem on behalf of the client, that such time expended was reasonable and necessary, and to establish the appropriate hourly rate. In re White Inter Vivos Trusts, No. 04-09-00040-CV, 2009 WL 2767155 (Tex. App.—San Antonio Aug. 31, 2009, no pet.); Magna Donnelly Corp. v. Deleon, 267 S.W.3d 108 (Tex. App.—San Antonio 2008, no pet.); Goodyear Dunlop v. Gamez, 151 S.W.3d 574 (Tex. App.—San Antonio 2004, no pet.).
Billing Records Required: The court cannot adjudicate the reasonableness of attorney’s fees on judicial knowledge without the benefit of evidence. Great American Reserve Insurance Co. v. Britton, 406 S.W. 2d 901 (Tex. 1966); Bullock v. Foster Cathead Co., 631 S.W.2d 208 (Tex. App.—Corpus Christi–Edinburg 1982); Mills v. Mills, 559 S.W.2d 687 (Tex. App.—Fort Worth 1977). The detailed billing records supply such evidence.
Expert Testimony: If challenged, evidence on the reasonableness of attorney’s fees comes under the definition of expert testimony and is measured by the requisites of E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), which adopted the U.S. Supreme Court’s rationale in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
No “Bonus” Factors: Absent exceptional circumstances, a court should not enhance the fee calculated by multiplying necessary number of hours expended by a reasonable hourly rate. Additional sums are rarely appropriate, particularly since the guardian ad litem serves, in part, as an advisor to the court and will enjoy the protection of qualified judicial immunity. Tex. Est. Code § 1054.056; Tex. R. Civ. P. 173 cmt. 5. See also Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 608–09 (Tex. 2006); Ford Motor Co. v. Garcia, 363 S.W.3d 618 (Tex. App.—Corpus Christi–Edinburg 2010), rev’d & remanded, 363 S.W.3d 573 (Tex. 2012).
No Prior Objections Required: Complaints about the ad litem’s services need not be made before the fee hearing. Jocson v. Crabb, 133 S.W.3d 268 (Tex. 2004).
An ad litem determined by the court to have exceeded his role will not be paid for unauthorized work. Land Rover U.K., Ltd., 210 S.W.3d at 607; Magna Donnelly Corp., 267 S.W.3d 108; Goodyear Dunlop, 151 S.W.3d 574; Roark v. Mother Frances Hospital, 862 S.W.2d 643, 647 (Tex. App.—Tyler 1993, writ denied). For example, a guardian ad litem who takes on the role of the ward’s attorney is not entitled to compensation for services rendered as an attorney. Dawson v. Garcia, 666 S.W.2d 254, 265 (Tex. App.—Dallas 1984, no writ). The trial court has broad discretion in determining a proper fee. On appeal, the standard of review is abuse of discretion. In re Guardianship of Hanker, No. 01-12-00507-CV, 2013 WL 3233251 (Tex. App.—Houston [1st Dist.] June 25, 2013, no pet.).
§ 6.8:3Factors in Determining Reasonableness
In determining reasonableness, the factors to be considered include—
1.the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
2.the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
3.the fee customarily charged in the locality for similar legal services;
4.the amount involved and the results obtained;
5.the time limitations imposed by the client or by the circumstances;
6.the nature and length of the professional relationship with the client;
7.the experience, reputation, and ability of the lawyer or lawyers performing the services; and
8.whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Tex. Disciplinary Rules Prof’l Conduct R. 1.04.
These factors are often called the “ABA” factors, the “Garcia” factors (Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)), or the “Arthur Andersen” factors (Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997)). See also In re Guardianship of Hanker, No. 01-12-00507-CV, 2013 WL 3233251, at *3 (Tex. App.—Houston [1st Dist.] June 25, 2013, no pet.).
A trial court is not required to consider all of the factors in every case. The factors are guidelines for the trial court to consider, not elements of proof. In re Estate of Johnson, 340 S.W.3d 769 (Tex. App.—San Antonio 2011); Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 567 (Tex. App.—Austin 2004, no pet.); Academy Corp. v. Interior Buildout & Turnkey Construction, Inc., 21 S.W.3d 732, 742 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
To apply these factors, a reviewing court “may draw upon the common knowledge of the justices and their experience as lawyers and judges to view the matter in light of the evidence and the amount in controversy.” Land Rover U.K., Ltd. v. Hinojosa, 210 S.W. 3d 604, 607 (Tex. 2006) (quoting Borden, Inc. v. Martinez, 19 S.W.3d 469, 471 (Tex. App.—San Antonio 2000, no pet.)).
Some of the factors may be given more weight than others by the trial court. In re Guardianship of Hanker, 2013 WL 3233251, at *3; Ford Motor Co. v. Garcia, 363 S.W.3d 618 (Tex. App.—Corpus Christi–Edinburg 2010), rev’d & remanded, 363 S.W.3d 573 (Tex. 2012) (short timeframe and complexity of case).
See forms 6-18 and 6-19 in this chapter for an application and order to pay appointee’s fees and expenses. For a discussion on attorney’s fees and the determination of reasonable and necessary, see sections 10.10–10.10:11 in this manual.
§ 6.8:4Examples of Noncompensable Activities
While ad litems are entitled to be compensated for their time in preparing ad litem reports, there are certain activities for which they are not entitled to charge.
Research: Attorneys who choose to practice in this area should be familiar with probate and guardianship matters, as well as the fee policies of the majority of the statutory probate courts. Because of Texas Disciplinary Rules of Professional Conduct rule 1.01, which states “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence . . .” the court will not ordinarily reimburse attorneys for basic legal research in these areas. See Tex. Disciplinary Rules Prof’l Conduct R. 1.01. A formal opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility indicates, and it is generally a consensus among statutory probate judges, that the costs of computerized legal research (Westlaw and Lexis) are a part of an attorney’s overhead, as are the costs of a hard-copy library. American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 93-379, December 6, 1993. Reimbursement may be allowed for research to address novel legal questions raised by opposing counsel or questions posed by the court.
Preparation of Fee Application, Fee Hearings, and Appeals: Preparing and defending a fee application at a hearing or on appeal promotes the ad litem’s interests, not those of the client. Time expended in such activities are not reimbursable. In re Guardianship of Glasser, 297 S.W.3d 369, 378–79 (Tex. App.—San Antonio 2009, no pet.); Holt Texas, Ltd. v. Hale, 144 S.W.3d 592, 597–98 (Tex. App.—San Antonio 2004, no pet.); Goodyear Dunlop v. Gamez, 151 S.W.3d 574, 587–593 (Tex. App.—San Antonio 2004, no pet.).
Consultations with Court Staff Regarding Procedural Questions: These consultations are not reimbursable unless the court staff has specifically requested information not ordinarily contained in properly drafted pleadings or if the fee application reveals special circumstances requiring the attorney to seek guidance from the court.
Telephone Calls to Court Staff or Clerk’s Office Inquiring about Status of Paperwork: Attaching a self-addressed, stamped envelope to all applications and proposed orders, coupled with payment of any required filing and posting fees will help ensure attorneys receive conformed copies of submitted orders. This will reduce or eliminate the necessity for calls to the clerk’s office to check on the status of a particular order.
However, appellate attorney’s fees were held proper for an ad litem who successfully appealed a trust termination and had the trust reinstated as to the ad litem’s clients. In Re White Inter Vivos Trusts, No. 04-09-00040-CV, 2009 WL 2767155 (Tex. App.—San Antonio Aug. 31, 2009, no pet.).
§ 6.8:5Billing for Additional Legal Professionals and Retaining Specialized Counsel
Only the ad litem is appointed, not the entire law firm of the ad litem; the court’s intent is that the appointed attorney act personally as an officer of the court. An ad litem may not be compensated for time expended by other attorneys, unless the court has made a specific finding that the other attorney’s services were reasonable and necessary under a particular extenuating circumstance. Jocson v. Crabb, 133 S.W.3d 268, 271 (Tex. 2004); Goodyear Dunlop v. Gamez, 151 S.W.3d 574, 588 (Tex. App.—San Antonio 2004, no pet.).
In extenuating circumstances, and with prior permission of the court, additional counsel and/or support staff may be employed. This will still be subject to a subsequent finding by the court that the additional attorney’s services were reasonable and necessary. In re Guardianship of Glasser, 297 S.W.3d 369 (Tex. App.—San Antonio 2009) (attorney ad litem in guardianship allowed to retain litigation counsel); accord Scally v. Scally, No. 14-09-00344-CV, 2010 WL 3864924 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (ad litem in SAPCR proceeding retained counsel to collect awarded fees); Goodyear Dunlop, 151 S.W.3d at 588. The applicant must show particular, unusual circumstances why it was necessary for persons other than the ad litem to fulfill the ad litem’s duties. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 580 (Tex. 2012). Additionally, full narrative detail must be provided for any services performed by anyone other than the ad litem. Ford Motor Co., 363 S.W.3d at 580–81.
Legal work performed by legal assistants may be recovered as an element of attorney’s fees. Gill Savings Ass’n v. International Supply Co., 759 S.W.2d 697, 702–05 (Tex. App.—Dallas 1988, writ denied). The proof required for billings by legal assistants is set forth in detail in that opinion. For a more recent case, see Ford Motor Co., 363 S.W.3d at 580–81, for specific application to ad litems.
Ad litem’s fees are costs of court. The court will typically order the fees to be paid from the estate of the ward or proposed ward. If, however, the court determines that the estate is insufficient to pay, the court may order the county to pay the cost of the ad litem’s services in a guardianship proceeding. Tex. Est. Code § 1155.151; Overman v. Baker, 26 S.W.3d 506, 512–13 (Tex. App.—Tyler 2000, no pet.) In such cases, the court approves fees under a budget approved and overseen by the commissioners court. Consequently, attorneys can rarely be compensated at their regular hourly rates. “County-pay” cases may be on a “capitated fee” (reduced set fee) basis or on a reduced hourly rate (if the case demands exceed the norm).
Note also that, in contested cases, on a finding that persons have acted without good faith or just cause, the judge is authorized to tax costs and require reimbursement of attorney’s fees (including the fees of the ad litems). Tex. Est. Code §§ 1053.052, 1155.054. See section 10.4:2 in this manual.
When an ad litem can be compensated from a solvent estate, the court’s award of reasonable attorney’s fees begins with the court’s determination of whether the representation reasonably required of (and actually provided by the ad litem) is “typical” or “normal.” The court’s analysis is based on the ABA factors (see section 6.8:3 above), as well any unusual circumstances peculiar to probate and guardianship. These factors determine the extent to which the fee allowed should be more than, equal to, or less than the typical or normal fee. In general, ad litem fees are less than the fee of the applicant’s attorney unless special factors are present.
The hourly rates allowed will vary, depending on the nature of the case and the experience of the attorneys involved. Rates may range from a modest hourly rate for a no-asset, county-pay case to higher rates for complex litigation (that involving wrongful death, malpractice, fiduciary breach, or trust). Although your local court will most likely have a published policy regarding what can and cannot be charged for, an attorney’s hourly rate is expected to cover the office overhead (everything except actual out-of-pocket expenses such as filing fees).
Separate expenses and travel costs should be detailed in attached exhibits. Court staff will often check claimed mileage with an online map service like Google Maps or Mapquest.
The application and order for fees and expenses should be filed at or shortly after the hearing on the guardianship. If the guardian ad litem has brought the application, the application for fees should be made after the guardian has qualified.
§ 6.8:10Separate Order Awarding Fees
Previous orders of the Texas Supreme Court requiring any order awarding a fee to a person appointed by a statutory probate court to be separate and apart from any other pleading (Misc. Docket Nos. 94-9143 & 07-9188) were repealed following the enactment in 2015 of the fee-reporting mechanism of Tex. Gov’t Code ch. 36. However, many courts will still want the order awarding fees to be separate and apart from any other pleading to better enable the clerk to meet their mandatory reporting requirements.
Despite the dicta in the case of In re Guardianship of Fortenberry, 261 S.W.3d 904 (Tex. App.—Dallas 2008, no pet.), fee applications should always be filed as separate pleadings. Requests for fees should never be “imbedded” in another pleading. Fee applications should not be filed as claims against the estate unless: the estate is insolvent or the guardian has indicated he will refuse to pay when application is made. Being subjected to the claims process may force the ad litem to have to unnecessarily file suit to recover fees. In re Archer, No. 04-03-00260-CV, 2004 WL 57049 (Tex. App.—San Antonio Jan. 14, 2004, pet. denied).
Either the clerk of the court or the attorney ad litem may seek to have the applicant for guardianship post security to cover the probable costs of the guardianship proceeding. See Tex. Est. Code § 1053.052. For further discussion on seeking security costs, see section 6.4:4 above and sections 10.4:2–10.4:6 in this manual.
§ 6.9Duty to Report Abuse, Neglect, or Exploitation of Elderly or Disabled Person
A person who becomes aware of any specific acts of abuse, neglect, or exploitation of an elderly (age sixty-five or older) or disabled person must report certain information to the Texas Department of Family and Protective Services or other appropriate agency. See Tex. Hum. Res. Code §§ 48.002(a)(1), 48.051(a), (b). Reports may be made at any time to the Department of Family and Protective Services on a twenty-four-hour toll-free number, 1-800-252-5400, or at the Department’s secure website, www.txabusehotline.org. Complaints about a nursing home or similar facility may be made to the Texas Department of Aging and Disability Services at 1-800-458-9858.
The duty imposed to report applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, employee or member of a board that licenses or certifies a professional, and mental health professional. Tex. Hum. Res. Code § 48.051(c). Thus the duty to report extends to an attorney ad litem, a guardian ad litem, an employee of the ward’s chapter 1301 trust, and so forth.
The required report may be made orally or in writing and must include the name, age, and address of the elderly or disabled person; the name and address of any person responsible for the elderly or disabled person’s care; the nature and extent of the elderly or disabled person’s condition; the basis of the reporter’s knowledge; and any other relevant information. Tex. Hum. Res. Code § 48.051(d).
Failure to report the abuse, neglect, or exploitation is generally a class A misdemeanor, and knowingly or intentionally reporting information known to be false or unfounded is a class B misdemeanor. Tex. Hum. Res. Code §§ 48.052, 48.053.
§ 6.10Duty to Report Abuse or Neglect of Child
A person who has cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person must immediately report certain information to the Texas Department of Family and Protective Services or other appropriate agency. See Tex. Fam. Code §§ 261.101(a), 261.103. Reports may be made at any time to the Department of Family and Protective Services on a twenty-four-hour toll-free number, 1-800-252-5400, or at the Department’s secure website, www.txabusehotline.org.
The duty to report applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or health-care facility that provides reproductive services. See Tex. Fam. Code § 261.101(c). Special provisions relate to professionals. See Tex. Fam. Code § 261.101(b). Thus the duty to report extends to an attorney ad litem, guardian ad litem, employee of the ward’s chapter 1301 trust, and so forth.
The report must include, if known, the name and address of the child; the name and address of the person responsible for the child’s care, custody, or welfare; and any other pertinent information about the abuse or neglect. Tex. Fam. Code § 261.104. Penalties are prescribed for failure to report and for reporting falsely. See Tex. Fam. Code §§ 261.107, 261.109.