2022 Edition
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ISBN (print): 978-1-956363-00-5
ISBN (digital download): 978-1-956363-01-2
ISBN (online): 978-1-956363-02-9
Library of Congress Control Number: 2022944991
© 1982, 2003, 2004, 2006, 2012, 2013, 2015, 2016, 2018, 2019, 2022 State Bar of Texas
Austin, Texas 78711
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Printed in the United States of America
2022 Edition
Sarah Patel Pacheco, Chair
Judge Steve M. King, Judicial Liaison
W. Kevin Alter
Kathleen Tanner Beduze
Ray J. Black, Jr.
Hon. T. Christine Butts
Steven D. Fields
Terry W. Hammond
Brendan P. Harvell
Craig Hopper
Lisa H. Jamieson
R. Dyann McCully
Hon. Quentin McGown
Hon. Amy Parsons
Travis Weaver
Tara Zinn
2022-2023
Laura Gibson, President
Chad Baruch, Chair of the Board
Dwight McDonald, Chair, Board Professional Development Subcommittee
Scott Rothenberg, Chair, Committee on Continuing Legal Education
Trey Apffel, Executive Director
TexasBarBooks
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James W. Norman, Publications Attorney
Derek Smith, Publications Attorney
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Courtney Cavaliere, Editor
Roger Siebert, Editor
Edward Morgan, Operations Managerr
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The State Bar of Texas and the members of the manual committee are excited to publish the 2022 edition of the Texas Guardianship Manual. Since the first edition was published in 1982, Texas guardianship law has changed dramatically, making the need for an updated, user-friendly manual vital to Texas attorneys practicing in this area of the law. The goal of the manual remains the same—to provide an easily readable reference that addresses situations that commonly arise in a Texas guardianship practice.
The format of the manual should enable the attorney to quickly determine whether guardianship is necessary, whether there is a less restrictive alternative, the type of proceeding to be filed, and how to proceed once a particular type of guardianship or an appropriate alternative has been chosen. Since the appointment of an attorney ad litem is required in all guardianship proceedings, guidance has been provided on fulfilling that role. The fundamentals of guardianship proceedings are covered; however, the attorney must always be alert to unusual aspects of a particular case and refer to appropriate sources for answers to questions not addressed in this manual.
Members of the State Bar of Texas, several Texas judges, and the staff of the TexasBarBooks Department of the State Bar have contributed their expertise and a significant amount of time to the production and updating of this manual over the years. I must start by acknowledging James E. Brill, who invented the Texas Probate System—widely used by practitioners in this state—and who served as a consultant to the original Texas Guardianship Manual. Equal acknowledgment and appreciation is due Sharon B. Gardner, who chaired this committee from 1993 until 2010 and whose contributions are still reflected in the manual. Mr. Brill and Ms. Gardner set the standard for this and all future committees.
But each edition brings new committee members and their expertise. I sincerely appreciate the continued service of Steven D. Fields, Terry W. Hammond, Craig Hopper, Lisa H. Jamieson, Judge Steve M. King, Judge Amanda Torres, and Wesley E. Wright. Of particular note is The Honorable Steve M. King, presiding judge of Tarrant County Probate Court Number One.
Judge King continues to devote significant time and talent to this most recent edition. His experience, insights, and coordination of the various associate editors has been invaluable.
I want to recognize the newest committee members: Kathleen Beduze, Ray Black, Judge Christine Butts, Brendan Harvell, Dyann McCully, and Elisa Dillard Rainey. The generosity of these individuals in giving of their talents and time to the 2019 supplement is greatly appreciated.
But this and all the prior editions would not be possible without the hard work, encouragement, and sometimes prodding of the staff of the State Bar of Texas. It is impossible to give enough credit to Elma Garcia and the other members of the staff. From organizing meetings to legal research and writing, Elma and her team have provided support to the committee, and the manual is in great part a reflection of their hard work.
Finally, practitioners are encouraged to make sure they apprise themselves of statutory changes. The committee anticipates providing timely and useful updates to the manual; suggestions for inclusions or revisions are encouraged. They should be directed to the TexasBarBooks Department of the State Bar of Texas. It is the committee’s hope that the Texas Guardianship Manual will become a valuable tool for all Texas guardianship practitioners.
However, it is not intended to imply that certain suggested actions are practice standards or compulsory in all proceedings.
Sarah Patel Pacheco, Chair
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The Texas Guardianship Manual, fourth edition, is more than a form book. It is a practice guide for attorneys in Texas who handle guardianship matters. The manual is organized by the logical sequence of events that would occur while following a matter from beginning to end. Each chapter contains a detailed table of contents; each contains practice notes concerning the topic of the chapter. The forms take up the greater part of most chapters. The uniform format of practice notes and forms is designed to enhance readability and ready reference and to accommodate easier word-processing use of the forms. Note that nothing in this manual is intended to suggest that the matters discussed are compulsory or set practice standards. Rather, this manual offers ideas based on a review of the current state of Texas law and recent cases and claims involving attorneys practicing in the guardianship area in Texas.
The practice notes are short synopses of the law, designed to serve as a primer to the very basic matters involved in a particular chapter. These notes are, at most, black-letter law and do not try to resolve questions in controversial areas. For the attorney experienced with guardianship matters, these notes should serve as a reminder of some of the basics; for the attorney not so experienced, they should provide an orientation to the major matters with which the attorney needs to be concerned when contemplating a particular cause of action.
Although the notes are not intended as a treatise on guardianship matters, they contain much important information that must be understood before the forms may be used responsibly.
The forms (except those promulgated by governmental agencies) were prepared by members of a committee of experts in the guardianship field, and great care has gone into their preparation. The forms represent the best thinking of the practicing attorneys on the committee. Perfection is hard to achieve, however, and each attorney using these materials must depend on his or her own expertise and knowledge of the law; there is no substitute in a particular case for the legal mind. Thus, care should be taken to ensure that any form used fits the case and treats the problems of that case.
Within major sections of the text of forms, optional paragraphs or items are usually identified by boxed instructions. Because the manual can cover only relatively common guardianship situations, language needed to address an atypical issue in a particular case may not appear in the form. The user must take care both to eliminate language appearing in the form that is not appropriate for the particular case and to add any language needed for the particular case that does not appear in the form.
Two typefaces are used in the forms. Material in Times Roman (like most of this page) is appropriate for inclusion in a finished form. In contrast, Arial type is used for boxed instructions. When Arial type is used within the form itself (rather than in a box), it appears in boldface for emphasis.
Several types of bracketed material appear in the forms.
Choice of terms. In a bracketed statement such as “[he/she],” the user must choose between the terms or phrases within the brackets. The choices are separated by forward slash marks.
Optional words. In a phrase such as “Ward [and his estate],” the user must determine whether to include the phrase “and his estate.”
Substitution of terms. In a bracketed statement such as “[name of ward],” the user is to substitute the name of the ward rather than typing the bracketed material verbatim.
Instructions for use. Material such as “[include if applicable: . . . ]” and “[set out venue facts]” provides instructions for completing the finished form and should not be typed verbatim in the document. Bracketed instructions at the beginning of almost all the forms refer the user to section 3 of this introduction for instructions about composing the caption of the form.
Subtitles. The titles of some forms are followed by a bracketed subtitle that is not to be typed as part of the form title. In the title “Proof of Facts [Minor],” for example, the bracketed word simply distinguishes the form from another similarly titled form in the same chapter for ease of reference.
Signature lines appear as blank lines. Spaces for dates, times, and amounts that would be filled in after the document is prepared also appear as blank lines. (If an actual date, time, or amount should be inserted in the form when it is prepared, “[date],” “[time],” or “$[amount]” appears instead.)
Language in boxes is not to be included in the finished document but constitutes instructions, usually either telling the user whether to use the form language following the box, describing what information should be included at that point in the finished document or attached to it, or providing cautionary reminders about use of the form language.
Forms are numbered in sequence within each chapter. All forms begin with the number of the chapter, which is followed by a hyphen and the number of the form within the chapter. This system is used to permit future expansion of any chapter without requiring the rearrangement of the entire book.
An example of the caption that should precede the form title is not reprinted in most of the forms that require it. Typical case styles are discussed in section 3 below.
The online subscription version of the Texas Guardianship Manual contains the entire text of the manual and is searchable and hyperlinked to allow for easy, rapid navigation to topics of interest. Also included are electronic versions of all State Bar of Texas–copyrighted forms from the manual as editable Word files as well as printable or downloadable PDF files of selected forms available from various agencies, linked from the online subscription web pages for easy retrieval.
Applicable Texas and federal case and statute citations in the practice notes and forms instructions are linked to case reports and main code sections cited via Casemaker online.
Caveat: Note that the word-processing forms included in the online subscription contain instructional language as hidden text. Be aware that this language will be included in your completed forms unless you specifically delete it.
1.Court designations for caption of petition
Although no statute or rule prescribes the form for identifying in the caption the state court in which the petition is filed, the court and county should be named. If one of several courts may hear the case, as in counties with several district courts and county courts at law, the caption should have a blank on which the clerk can write the appropriate number when the petition is filed. The court designations set out below are recommended for captions.
District Court
IN THE DISTRICT COURT OF __________ COUNTY, TEXAS__________ JUDICIAL DISTRICT
Constitutional County Court
IN THE COUNTY COURTOF __________ COUNTY, TEXAS
Unnumbered County Court at Law
IN THE COUNTY COURT AT LAWOF __________ COUNTY, TEXAS
Numbered County Court at Law
IN THE COUNTY COURT AT LAWNUMBER _____ OF_________ COUNTY, TEXAS
The generally accepted appearance for captions in Texas pleadings has the cause number at the top center of the first page, the parties on the left, the court designation on the right, and a dividing line between the two, as set out below. Some counties may reverse the appearance of the court and cause number.
No. 00-12345
PAUL PAYNE § IN THE DISTRICT COURT
Plaintiff §
§ OF TRAVIS COUNTY, TEXAS
v. §
§
DON DAVIS §
Defendant § 345th JUDICIAL DISTRICT
Page numbers are consecutive for both practice notes and forms within each chapter. Practice notes begin with the number of the chapter, followed by the number of the page within the chapter. Forms begin with the number of the form, followed by the number of the page within the form. This system is used to permit revisions within any chapter without renumbering the pages in the remaining chapters.
In drafting the manual, the members of the committee devoted a great deal of effort to making it error free, but it undoubtedly contains some errors. We would appreciate your pointing out any errors you find in the manual, as well as any revisions you believe are advisable. Please mail any corrections or suggestions to the following address:
Director, TexasBarBooks
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711-2487
books@texasbar.com
Periodic updating of the manual is planned to reflect changes in the law. It is also expected that, over time, additional topics will be covered and the scope of coverage of existing topics will be expanded. We welcome your suggestions about new topics that you would find helpful. Please send your suggestions to the address shown above.