Chapter 1Ethics and Professional Conduct
§ 1.16:2Texas Advertising Guidelines
The section was updated to include discussion of new rules relating to advertising regarding medication or medical devices.
§ 1.18Technological Competence
The section was added to address requirements relating to technological competency.
§ 1.19Duty to Report Ethical Violation; Peer Assistance Program
The section was added to discuss an attorney’s duty to report ethical violations and the peer assistance program alternative.
§ 1.20Texas Lawyers’ Assistance Program
The section was added to discuss TLAP’s peer assistance program.
§ 1.61Person First Respectful Language
The section was added to discuss the use of ”person first” language in guardianship proceedings.
Chapter 2Temporary Guardianships and Other Emergency Relief
This chapter was added to
address temporary guardianships and other forms of emergency relief. Fifteen
forms from chapter 4 were added.
§ 2.1Purpose of Temporary Guardianship
The sections 2.1 – 2.11, discussing temporary guardianships, were moved and renumbered from chapter 4.
§ 2.21Temporary Restraining Order; Temporary Injunction
Sections 2.21 – 2.37 were added, discussing types of emergency relief available in the guardianship process.
Chapter 3Alternatives to Guardianship and Preguardianship Planning
§ 3.6Managing and Possessory Conservatorship for Minor
The section was updated to reflect statutory updates regarding the nonparent managing conservator’s rights relating to a minor’s passport.
§ 3.7Temporary Authorization to Consent to Voluntary Inpatient Mental-Health Services for Child
The section was added to discuss the procedure for a designated adult nonparent family member to seek a court order for or to consent to voluntary inpatient mental-health services.
§ 3.16End-Stage Planning and Palliative Care—Statement of Intent
This section was updated to expand the discussion on standard forms for durable power of attorney for health care and their use in Texas.
§ 3.17:2In-Hospital Do-Not-Resuscitate Order
The section was added to discuss the use of in-hospital-do-not-resuscitate orders.
§ 3.18:5Mental Illness Diversion Programs (Criminal Courts)
The section was added to discuss an alternative treatment option for patients with mental illness who commit crimes.
§ 3.18:6Release on Bail for Court-Ordered Outpatient Mental-Health Services
The section was added to discuss the option of release on bail for outpatient mental-health services for certain nonviolent offenders.
§ 3.18:7Intellectually Disabled Individuals—Release in Lieu of Arrest
The section was added to discuss alternatives to arrest for certain intellectually disabled individuals.
§ 3.24.2Texas ABLE Program
The section was added to discuss the use of an ABLE account to save funds without jeopardizing eligibility for federally funded means-tested benefits.
§ 3.29:3Transfer on Death Deeds (TODD)
The section was added to discuss the use of a transfer on death deed to transfer title to a named beneficiary at the grantor’s death.
§ 3.29:4Enhanced Life Estate “Lady Bird” Deed
The section was added to discuss the use of a ”Lady Bird” Deed to transfer property.
§ 3.33Supports and Services
The section was updated to discuss Olmstead v. L.C. and In re Guardianship of A.E. and to expand the discussion of supports and services.
Chapter 4Creating Guardianships
The discussion on temporary guardianships and associated forms were moved to chapter 2, and the remaining sections and forms were renumbered.
§ 4.6Persons for Whom Guardian Is Appointed to Receive Government Funds
The section was updated to note that there have been significant changes to the VA fiduciary program, as discussed in chapter 5.
§ 4.33Training and Qualification for Guardians
The section was added to discuss training requirements for guardians.
§ 4.34Registration of Guardianships and Guardianship Database
The section was added to discuss the mandatory registration program for guardians.
Chapter 5Guardianships of Veterans and the VA Fiduciary Program
§ 5.2Authority
The section was updated to detail modifications to the C.F.R. affecting VA benefits.
§ 5.5VA Fiduciary Program
The section was updated to reflect new rules affecting the VA fiduciary program.
§ 5.6Designation of VA Fiduciary
The section was added to detail the role of the VA and the VA fiduciary in managing a beneficiary’s benefits.
§ 5.7VA Fiduciary Accountings
The section was added to discuss the required accountings in the VA fiduciary program.
§ 5.8VA Fiduciary Fees
The section was added to discuss the designated fees associated with the VA fiduciary program.
§ 5.9When Guardianship of Veteran May Be Necessary
The section was added to address issues relating to the connection between the need for a guardianship and the designation of a VA fiduciary.
§ 5.13Exemption from Guardianship Proceeding Fees for Certain Military Servicemembers
The section was updated to note that the relevant provision has expired and has not been renewed.
§ 5.14Powers, Duties, and Obligations of Guardian of Person Entitled to Government Funds
The section was updated to expand the discussion of the effect of new federal regulations on existing statutory and Texas case law.
§ 5.21Guardianship/VA Conflicts
The section was updated to elaborate on the conflict between existing federal provisions and state law.
Chapter 6 Guardians and Attorneys Ad Litem
§ 6.3Ethical Considerations
The section was updated to discuss proposed rule changes relating to clients with diminished capacity.
§ 6.4:2Appointment
The section was updated to discuss the impact of a disaster declaration on the appointment process. A discussion of In re Kelm, which considers the State Bar Guardianship Certification process, was added.
§ 6.7:1Liability of Attorney Ad Litem
The section was added to include additional case law discussing the responsibilities of the attorney ad litem.
§ 6.7:2Liability of Guardian Ad Litem
The section was added to include new case law discussing the role of the guardian ad litem and to expand the discussion on the ad litem’s role.
§ 6.8:1Basis of Fees for Ad Litem
The section was updated to expand the discussion on the inability to afford costs.
Chapter 7Inventory, Safekeeping, and Creditors
§ 7.4:2Presentment of Claim to Guardian
The section was updated to expand the discussion on verification of claims.
§ 7.4:5Priority of Claims
The section was added to address priority of claims.
§ 7.4:6Suit on Rejected Claim
The section was renumbered.
Chapter 8Administration
§ 8.11:4Calculating Compensation for Guardian of Person and Estate
The section was added to clarify the method of a guardian’s compensation.
§ 8.11:5Application for Compensation
The section was updated to reflect statutory language relating to the relevant standard for management and investments.
§ 8.22:2Application to Employ Attorney
The section was updated with a discussion on contracts and conveyances and the requirement for court approval.
§ 8.91Guardian of Person’s Duty to Inform Ward’s Relatives about Ward’s Health and Residence
The section was added to discuss the duty of the guardian of the person to inform the ward’s relatives regarding the ward’s health or change of residence.
§ 8.92Guardian’s Duty to Notify Court of Ward’s Emergency Detention
The section was added to discuss the duty of the guardian of the person to notify the court of the ward’s emergency detention.
Chapter 9Modification, Restoration, and Successor Guardians
§ 9.2 Annual Review Regarding Continuation
The section was updated to indicate certain limitations when making an application for complete restoration.
§ 9.3:2Citation
The section was renumbered.
9.3:3Informal Request
The section was revised to discuss the requirement that the court investigator or guardian ad litem file a report in connection with an informal request.
§ 9.4Restoration
The section was updated to clarify the process for application for ”complete” restoration.
§ 9.4:2Citation
The section was renumbered.
§ 9.4:4Representation of Ward
The section was updated to discuss the ability to challenge the authority of counsel to represent a ward in a restoration proceeding. A discussion of the right to represent the ward has also been added.
§ 9.4:7Removal of Firearm Disability upon Restoration
The section was added from the section discussing hearings.
§ 9.5Appointment of Successor Guardian
The sections 9.5 – 9.5:7 were updated and reorganized to streamline the discussion on the process for and the circumstances in which a successor guardian may be appointed. The rights, powers, and duties of the successor guardian are also discussed.
Chapter 10Litigation
§ 10.2:1Permanent Guardianship
The section was revised.
§ 10.2:2Temporary Guardianship
The section was revised to include discussion of the scheduling of a hearing, the rights of the proposed ward, and the requirement regarding the applicant’s required presence.
§ 10.2:4Failure to Meet Service and Notice Requirements
The section was revised.
§ 10.4:2Costs of Proceedings
The section was revised to include discussion on how the costs of proceedings are paid and to include the "Bad-Faith” exception.
§ 10.5:2Procedure to Challenge Standing
The section was updated to indicate the impact of a finding of lack of standing on the recovery of attorney’s fees.
§ 10.5:3Disqualification
The section was revised to include a list of people that would be presumed not to be in the best interest of the ward if appointed.
§ 10.9:2Findings Required by Trier of Fact
The discussion on clear and convincing evidence was expanded with additional case law.
§ 10.10:4Authorization to Recover Attorney’s Fees; Fee-Shifting
Sections 10.10:4 – 10.10:11 were added to include an analysis of Rohrmoos v. UTSW DVA Healthcare, LLP, and discussion of the “reasonable and necessary” standard, fee shifting, expert testimony, the lodestar method, billing records, paralegal fees, and related statutes and rules.
§ 10.11Alternative Dispute Resolution
Sections 10.11 – 10.11:4 were added to discuss voluntary settlement procedures and alternatives to litigation.
Chapter 12Public Benefits
§ 12.1Public Benefits Potentially Available to Guardians
The section was updated to indicate additional benefits that should be considered.
§ 12.2:2Social Security Retirement Benefits
The section was updated to reflect current income requirements.
§ 12.2:3Social Security Survivor Benefits
The section was updated to address scenarios involving
multiple widows and former spouses.
§ 12.2:5Medicare
The section was updated to reflect current Medicare premiums.
§ 12.3:1Supplemental Security Income (SSI)
The section was updated to reflect the current benefit amount for SSI, current income limits, and the current maximum reduction under the One-Third Reduction Rule.
§ 12.3:2Medicaid
The section was updated to reflect current Medicaid income limits and Medicaid resource limits.
§ 12.3:3Considerations for Calculating Income
The section was updated to reflect the current SSI income limit and current COLA increase.
§ 12.4:3VA Low-Income Disability Payments
The section was updated to reflect current requirements for benefit eligibility. A discussion on the penalty for transfer of “covered assets” was also added.
§ 12.5:1Qualified Income Trust/Miller Trust
The section was updated to reflect current Medicaid income caps and other requirements. A discussion on the use of ‘Lady Bird’ deeds has also been added.
§ 12.5:2Trusts Affecting Medicaid Availability
The section was updated with a discussion on the use of “Lady Bird” deeds.
§ 12.5:4Medicaid Transfer of Assets Penalty
The section was updated to reflect current values relating to the transfer of assets penalty and to add further discussion on the distribution requirements relating to trusts created for the “sole benefit” of an individual.
Chapter 13Foreign Guardianships
§ 13.2:1Guardianship Proceedings Filed in Texas and in Foreign Jurisdiction
The section was updated to discuss recent case law analyzing multijurisdictional conflicts.
Chapter 14Final Accounts and Closing Guardianships
§ 14.2:2Contents
The section was revised to clarify that the final account does not require verification.
Chapter 15Compliance, Show-Cause Order, Removal, and Reinstatement
§ 15.2:1Requirement to Qualify
The section was updated to include additional case law on the guardian’s role and responsibilities.
§ 15.2:2Requirement to File Inventory and Appraisement
The section was revised to address the penalty for failure to timely file the inventory.
§ 15.2:3Requirement to Notify Creditors
The section was added to discuss the guardian’s responsibility to notify certain creditors.
§ 15.2:4Requirement to Apply for Monthly Allowance
The section was added to detail the process for requesting a monthly allowance.
§ 15.2:5Requirement to Collect Claims and Recover Property; Duty of Care
The section was added to explain the guardian’s responsibility for collecting claims and debts.
§ 15.2:8Requirement to Post New Bond
The section was updated to provide additional detail on bond requirements.
§ 15.2:10Requirement to Close Guardianship of Person
The section was added to note the deadline for notifying the court of the termination of the guardianship of the person following the ward’s death.
§ 15.2:11Requirement to Close Guardianship of Estate
The section was added to explain the penalty for failure to timely deliver assets following the approval of the final accounting.
§ 15.4:1Removal without Notice
The section was revised to expand on the discussion on removal and to note the burden of proof.
§ 15.4:2Removal with Notice
The section was revised to include additional grounds for removal and to note the burden of proof. A comment on costs related to the proceedings was added, and case law was added noting that the removal is a final appealable order.
§ 15.4:3Order of Removal
The section was updated to elaborate on the requirements following the order of removal.
§ 15.6Removal of Joint Guardian
The section was added to address the circumstance in which a joint guardian is removed.
Chapter 16Mental Health and Involuntary Commitment
The chapter was added to discuss common mental-health issues that may be present in guardianship cases and to provide a comprehensive overview of the rights of the ward and relevant laws that may be applicable in guardianship cases with mental-health considerations. The previous chapter 16 (Legislative Update) was deleted.
Changes to Forms—December 2019
Chapter 4Creating Guardianships
All forms were renumbered.
Form 4-3Application for Appointment of Guardian of Person and Estate of Minor
Minor edits were made to the form.
Form 4-5Application for Appointment of Guardian of Person and Estate [Adult, Total Incapacity]
Minor edits were made to the form.
Form 4-6Application to Transfer Guardianship from [name of county] County, Texas, Pursuant to Texas Estates Code Section 1023.003
Minor edits were made to the form.
Form 4-7Order Transferring Guardianship Proceeding from [name of county] County, Texas, Pursuant to Texas Estates Code Section 1023.003
Minor edits were made to the form.
Form 4-10Order Appointing Permanent Guardian of Person and Estate with Full Authority
Minor edits were made to the form.
Form 4-11Order Appointing Permanent Guardian of Person with Full Authority
Minor edits were made to the form.
Form 4-12Order Appointing Permanent Guardian of Person and Estate with Limited Authority
Minor edits were made to the form.
Form 4-14Proof of Facts [Adult]
Minor edits were made to the form.
Form 4-15Ward’s Bill of Rights
The form was updated.
Chapter 5Guardianships of Veterans and the VA Fiduciary Program
Form 5-1VA Advance Directive Durable Power of Attorney for Health Care and Living Will
The previous form 5-1 (VA Fiduciary’s Account) was deleted and previous form 5-2 was renumbered to replace it. All following forms were renumbered.
Chapter 6Guardians and Attorneys Ad Litem
Form 6-24Statement of Inability to Afford Payment of Court Costs or an Appeal Bond
The form was added.
Chapter 9Modification and Restoration
Form 9-7Application to Appoint Successor Guardian
The form was renumbered.
Form 9-8Application for Appointment of Successor Guardian of Person
The form was renumbered.
Form 9-9Application for Leave to Resign as Guardian and for Appointment of Successor Guardian
The form was renumbered and substantially revised.
Form 9-10Order Approving [Final Account/Final Report/Final Account and Report] and Ordering Delivery of Estate
The form was added.
Form 9-11Order Appointing Successor Guardian
The form was renumbered, and minor edits were made.
Chapter 14Final Accounts and Closing Guardianships
Form 14-1Account for Final Settlement
Minor edits were made.
Form 14-2Final Report on Location, Condition, and Well-Being of Ward and Application to Discharge Guardian
The form was renumbered.
Form 14-3Order Acknowledging Review of Final Report and Discharging Guardian
The form was renumbered.
Form 14-4Waiver of Notice and Citation
The form was renumbered.
Form 14-5Order Approving Account for Final Settlement
The form was renumbered, and minor edits were made.
Form 14-6Receipts
The form was renumbered and substantially revised.
Form 14-7Application to Close Estate and Discharge Guardian
The form was renumbered.
Form 14-8Order Closing Estate and Discharging Guardian
The form was renumbered, and minor edits were made.
Form 14-9Motion to Release Guardian’s Cash Bond
The form was renumbered.
Form 14-10Order Releasing Guardian’s Cash Bond
The form was renumbered.