Litigation
Every guardianship begins as a contested guardianship. At a minimum, the court must appoint an attorney ad litem to advocate for the proposed ward. In some cases the attorney ad litem needs only to ensure the applicant meets the burden of proof. Other guardianships, however, may involve issues of adverse interest, disqualification, and incapacity.
This chapter is intended to provide practical tips for dealing with many of the more common issues in a contested guardianship.
Practice Pointer—Attorney Certification: As a practitioner, it is important to note that effective September 1, 2021, an attorney representing any person in a guardianship proceeding, not just the applicant’s attorney and any court-appointed attorney, must obtain a guardianship education certification. Tex. Est. Code § 1054.201(a); Tex. Gov’t Code § 81.114. An attorney who does not have the certification may enter an appearance but must complete the course requirements within fourteen days and prior to filing any substantive pleading. Tex. Est. Code § 1054.201(c). The State Bar of Texas provides a course of instruction available via the Internet for attorneys who wish to practice in any guardianship case. Tex. Gov. Code § 81.114(a), (e).
§ 10.2Jurisdictional Issues: Citation
Before beginning substantive work on a guardianship proceeding, the parties and the proposed ward’s attorney ad litem should verify that the applicant has met the strict notice and citation requirements found in chapter 1051 and section 1251.005 of the Texas Estates Code. See Tex. Est. Code ch. 1051, § 1251.005.
Although Tex. R. Civ. P. 103 provides for service of citation and other notices in all civil cases, it is limited in probate and guardianship proceedings by Tex. R. Civ. P. 2, because the substantive provisions of the Estates Code address the same area and differ from the general rules. As a result, the notice and citation provisions of the Estates Code control over those in the Rules of Civil Procedure.
The decision in Torres v. Ramon reiterates the importance of proper citation of all applications and cross-applications for guardianship. See Torres v. Ramon, 5 S.W.3d 780 (Tex. App.—San Antonio 1999, no pet.). In Torres, the court noted that proper citation of each party’s respective applications for guardianship was necessary for the trial court to have jurisdiction to consider the party’s application. Because the cross-applicant did not perfect personal and other service of his application, the trial court lacked jurisdiction to hear the cross-application for guardianship; the citation of the original application did not grant the court jurisdiction over any cross-applications filed by other persons. Torres, 5 S.W.3d at 782 n.1.
Although older cases have held that all provisions for citation must be strictly observed (see Torres, 5 S.W.3d at 780), some more recent appellate opinions seem to relax the otherwise strict requirements of citation. For further discussion of these cases and a discussion of failure to meet service requirements, see section 10.2:4 below.
§ 10.2:1Permanent Guardianship
Before the hearing on a permanent guardianship, several types of notice and citation must issue.
Posted Citation: Citation must be posted (accomplished by the clerk of the court in which the guardianship proceedings are pending) showing (1) that the application was filed, (2) the name of the proposed ward, (3) the name of the applicant, and (4) the name of the person to be appointed guardian. Tex. Est. Code § 1051.102(a).
Additionally, the citation must cite all persons interested in the welfare of the proposed ward to appear at the time and place stated in the notice if the persons wish to contest the application. Tex. Est. Code § 1051.102(b). Finally, the citation must contain a clear and conspicuous statement informing those interested persons of the right provided in section 1051.252 to be notified of all motions, applications, or pleadings relating to the application for guardianship or any subsequent guardianship proceeding involving the ward after the guardianship is created. Tex. Est. Code § 1051.102(d).
Personal Citation: The sheriff or other officer shall personally serve citation to appear and answer an application for guardianship on—
1.a proposed ward twelve years of age and older;
2.the parents of a proposed ward, if their whereabouts are known or can be reasonably ascertained (note that this is not limited to a proposed ward less than a certain age);
3.any court-appointed conservator or person having control of the care and welfare of the proposed ward;
4.a proposed ward’s spouse, if the whereabouts of the spouse are known or can be reasonably ascertained; and
5.the person named in the application to be appointed guardian, if that person is not the applicant.
Tex. Est. Code § 1051.103. The supreme court has held that a technical defect in personal service on the ward does not deprive the court of jurisdiction. See In re Guardianship of Fairley, ___S.W.3d___, No. 20-0328, 2022 WL 627776, at *1 (Tex. Mar. 4, 2022) (probate court properly exercised jurisdiction where ward was personally served and participated in proceedings without objection although served by private process service and not sheriff).
Practice Pointer: The reference to service by the sheriff or “other officer” means a uniformed peace officer. Some appellate courts have determined that personal service of citation by a process server or other non-peace officer is insufficient. To be safe, personal service of the proposed ward should always be by a uniformed peace officer.
Citation by Confirmed Mail Delivery: Service must be by certified or registered mail, return receipt requested, or “any other form of mail that provides proof of delivery.” The persons the applicant shall serve include—
1.adult children of the proposed ward;
2.adult siblings of the proposed ward;
3.the administrator of a nursing home where the proposed ward is located;
4.the operator of a residential facility in which the proposed ward resides;
5.any known holder of a power of attorney from the proposed ward;
6.any person known to be designated to serve under a designation of guardian under Texas Estates Code chapter 1104;
7.a person designated to serve as guardian in the probated will of the proposed ward’s last surviving parent;
8.any person known to be designated by a deceased parent to serve under a designation of guardian; and
9.each adult named as an other living relative within the third degree of consanguinity in the application as required by Estates Code section 1101.001(b)(11) or (13) if the proposed ward’s spouse and each of the proposed ward’s parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.
The validity of a guardianship is not affected by the failure of the applicant to serve any of the persons listed in section 1051.104(a), except the adult children of the proposed ward. See In re Guardianship of V.A., 390 S.W.3d 414, 421 (Tex. App.—San Antonio 2012, pet. denied); see also Tex. Est. Code § 1051.104(c).
Waiver of Notice or Citation: A person other than the proposed ward who is entitled to receive notice or personal service of citation under sections 1051.103 and 1051.104(a) of the Estates Code may, by writing filed with the clerk, waive the receipt of notice or the issuance of personal service of citation either in person or through an attorney at litem. Tex. Est. Code § 1051.105. The attorney ad litem cannot accept service for the proposed ward, and the proposed ward cannot waive personal service. Even an agent under a valid power of attorney previously given by the proposed ward cannot accept or waive service on behalf of the proposed ward. In re Martinez, No. 04-07-00558-CV, 2008 WL 227987 (Tex. App.—San Antonio Jan. 30, 2008, no pet.) (mem. op.). All other persons entitled to personal service may file waivers. Tex. Est. Code § 1051.105.
To obtain a waiver, the person wishing to waive service should send a cover letter including a postage-paid return envelope, a waiver form, and a copy of the front side of the posted citation.
Proof of Delivery: The applicant shall file with the court—
1.copies of the notices given to the persons included in Estates Code section 1054.104(a), along with proofs of delivery of the notices (typically, the return receipts or “green cards”) from the certified mail, and
2.an affidavit, sworn to by the applicant or the applicant’s attorney, reciting—
a.that notices were mailed as required by Estates Code section 1051.104(a), and
b.the name of each person to whom the notice was mailed (if the return receipt does not show the person’s name).
Lead Time Requirement: In the process of obtaining waivers and serving the persons included in Estates Code section 1054.104(a), be aware that Estates Code section 1051.106 provides “[t]he court may not act on an application for the creation of a guardianship until the applicant has complied with Section 1051.104(b) and not earlier than the Monday following the expiration of the 10-day period beginning on the date service of notice and citation has been made as provided by Sections 1051.102, 1051.103, and 1051.104(a)(1).” The affidavit of service under Estates Code section 1051.104(b) must also comply with the ten-day “lead-time” requirement. Tex. Est. Code § 1051.106.
Substituted Service: In some instances, it is desirable or necessary to obtain service by a person other than a uniformed peace officer. This may be due to considerations such as scheduling difficulties on the part of the sheriff’s department or the family’s sensitivities to having a uniformed officer appear to serve the proposed ward, for example, at an assisted living center where the proposed ward resides.
Alternative service is authorized (as directed by court order and as authorized by the Estates Code or Texas Rules of Civil Procedure) if—
1.any interested person requests it;
2.no specific form of notice, service, or return is prescribed; or
3.the code provisions are insufficient or inadequate.
In any event, service by private process or an alternative method must always be on application (supported by an affidavit) and order. Tex. Est. Code § 1051.201(b).
Practice Pointer: Some courts may have forms for an application for alternative service they prefer, and, in some counties, local rules prescribe the form of the application of the order. When considering alternative service, determine if there is a local rule prescribing a form of the application and order or if the court has a form it prefers.
Case Law: At least one appellate court has held that the lack of personal service on the proposed ward did not deprive the court of subject matter jurisdiction when the contestant prevented personal service on the proposed ward, accepted service on her behalf, and filed an answer on her behalf, when there was no clear legislative intent to make loss of jurisdiction mandatory. See In re Guardianship of Jordan, 348 S.W.3d 401 (Tex. App.—Beaumont 2011, no pet. h.). Likewise, substituted service was upheld on a proposed ward on a proper motion, affidavit, and order. See In re Guardianship of Bays, 355 S.W.3d 715, 718–19 (Tex. App.—Fort Worth 2011, no pet. h.).
Return of Citation and Notice: A citation or noticed issued by a county clerk must be returned to the court from which the citation or notice was issued on the first Monday after the service is perfected. Tex. Est. Code § 1051.154.
§ 10.2:2Temporary Guardianship
Temporary guardianships require compliance with certain expedited notice and citation requirements, all of which are set out in Texas Estates Code chapter 1251. On the filing of an application for temporary guardianship, the court clerk must issue personal citation to the proposed ward and the proposed temporary guardian (if that person is not the applicant) and notice to be served on the proposed ward’s appointed attorney. Tex. Est. Code § 1251.005(a). This citation or notice must describe with particularity the rights of the parties and the date, time, place, purpose, and possible consequences of a hearing on the application for appointment of a temporary guardian. Tex. Est. Code § 1251.005(b). The citation issued must contain a statement regarding the authority of a person under section 1051.252 who is interested in the estate or welfare of a proposed ward or, if a guardianship is created, the ward, to file with the county clerk a written request to be notified of all or any specified motions, applications, or pleadings filed with respect to the temporary guardianship proceeding by any person or by a person specifically designated in the request. Tex. Est. Code § 1251.005(b–1). A copy of the application for temporary guardianship must also be attached to the citation or notice. Tex. Est. Code § 1251.005(c). Unlike an application for permanent guardianship, an application for temporary guardianship does not have to be served on the proposed ward’s spouse, children, or siblings. See In re Guardianship of Guerrero, 496 S.W.3d 288, 291 (Tex. App.—San Antonio 2016, no pet.); Woollett v. Matyastik, 23 S.W.3d 48, 54 (Tex. App.—Austin 2000, pet. denied).
On the filing of an application for temporary guardianship, the court shall appoint an attorney to represent the proposed ward in all guardianship proceedings in which independent counsel has not been retained by or on behalf of the proposed ward. Tex. Est. Code § 1251.004.
Practice Pointer: Once an application for temporary guardianship is assigned a cause number, immediately file a motion and order to appoint an attorney ad litem for the proposed ward as a courtesy to the court. While some courts prepare their own orders of appointment, unless you are familiar with the procedures of the court assigned to the case it may expedite the appointment of an attorney ad litem if your motion and order is already filed for the court’s consideration.
Scheduling Hearing: Immediately after an application for a temporary guardianship is filed, the court shall issue an order setting a certain date for the hearing on the application. Tex. Est. Code § 1251.006(a). Unless postponed, a hearing shall be held not later than the tenth day after the date the application for temporary guardianship is filed. Tex. Est. Code § 1251.006(b). Only the proposed ward or the proposed ward’s attorney may consent to postponement of the hearing on an application for temporary guardianship for a period not to exceed thirty days after the date the application is filed. Tex. Est. Code § 1251.006(c). Because of the urgency inherent in an application for temporary guardianship, it takes precedence over all matters except older matters of the same character. Tex. Est. Code § 1251.006(d).
Rights of Proposed Ward: At the hearing on an application for temporary guardianship, the proposed ward has the right to (1) receive prior notice, (2) be represented by counsel, (3) be present, (4) present evidence, (5) confront and cross-examine witnesses, and (6) a closed hearing if requested by the proposed ward or his attorney. Tex. Est. Code § 1251.008. Section 1251.008(1) of the Estates Code (requiring prior notice to the proposed ward) reinforces the importance of securing service and notice on the proposed ward before the hearing on an application for temporary guardianship may commence. Failure to comply with the notice requirement before the hearing denies the proposed ward his constitutional right of due process embodied in chapter 1251 of the Estates Code. Defective service on the proposed ward effectively voids any order affirming the appointment of a temporary guardian on jurisdictional grounds. See Torres v. Ramon, 5 S.W.3d 780 (Tex. App.—San Antonio 1999, no pet.). However, under the right circumstances and with a court order, alternative service on the proposed ward can be effective. See In re Guardianship of Bays, 355 S.W.3d 715 (Tex. App.—Fort Worth 2011, no pet.).
Motion for Dismissal of Application for Temporary Guardianship: On one day’s notice to the party who filed the application, the proposed ward or his attorney may appear and move for the dismissal of an application for temporary guardianship. Tex. Est. Code § 1251.007(a), (b). However, this provision may not provide the court a vehicle for summary dismissal. In re Guardianship of Vavra, 365 S.W.3d 476 (Tex. App.—Eastland 2012, no pet.). If a motion is made for dismissal of an application for temporary guardianship, the court shall hear and determine the motion as expeditiously as justice requires. Tex. Est. Code § 1251.007(c).
When Applicant Is Required to Appear: If the applicant for a temporary guardianship is not the proposed temporary guardian, a temporary guardianship may not be granted before a hearing on the application unless the proposed temporary guardian appears in court. Tex. Est. Code § 1251.009.
Practice Pointer: Because there are no powers of a temporary guardian set forth in the statute, any order appointing a temporary guardian must describe (1) the reasons for the temporary guardianship and (2) the powers and duties of the temporary guardian. Tex. Est. Code § 1251.010(c). Consequently, an order granting the temporary guardian “all the powers and duties” as stated in the Estates Code confers no authority on the guardian. See Bennett v. Miller, 137 S.W.3d 894, 897 (Tex. App.—Texarkana 2004, no pet.).
Expiration and Closing of Temporary Guardianship: Unless the temporary guardianship remains open under Tex. Est. Code § 1251.052, the guardianship remains in effect for no more than sixty days. Tex. Est. Code § 1251.151. A final report must be filed at the termination of the temporary guardianship. Tex. Est. Code § 1251.153(a–1). Provided the ward is still living, the final report must include the reasons the temporary guardianship expired including a statement of facts that addresses whether the temporary guardianship expired because of (1) a finding by the court that the ward has full capacity or sufficient capacity to care for his own needs with supports and services, (2) there are alternatives to guardianship established that meet the ward’s needs, or (3) a permanent guardian appointed by the court has qualified to serve as guardian. Tex. Est. Code § 1251.153(a–1)(1). If the ward is deceased, the final report, in the form and manner required of a guardian of the person under section 1163.103, must include the date and place of death. Tex. Est. Code § 1251.153(a–1)(2). On proof of delivery and court approval of the final report, the temporary guardian shall be discharged and bond sureties released. Tex. Est. Code § 1251.153(b).
§ 10.2:3Application to Convert Temporary to Permanent Guardianship
For an application requesting that the temporary guardianship be converted to a permanent guardianship, requesting a full guardianship after requesting a finding of partial incapacity, or asking for someone other than the original applicant to be appointed, new citation may be required. In light of the Torres decision, the ward should also be personally served with the application to convert the temporary to a permanent guardianship to preserve the court’s jurisdiction. See the discussion of Torres v. Ramon, 5 S.W.3d 780 (Tex. App.—San Antonio 1999, no pet.), at sections 10.2 and 10.2:2 above.
Practice Pointer: If possible, at the time of filing an application for temporary guardianship, the applicant should also make application for permanent guardianship to allow the citation to show all the relief requested. The relief requested should pray for “a guardianship of the person, and if necessary, a guardianship of the estate” and include a request for “any suitable person” to be appointed. The protective pleading can often help avoid the need for additional citation to be issued, with the attendant ten-day delays.
§ 10.2:4Failure to Meet Service and Notice Requirements
The applicant has the burden of establishing compliance with any required service and notice under the Texas Estates Code.
Historically, appellate courts strictly enforced the personal service requirements. See, e.g., In re Guardianship of Erickson, 208 S.W.3d 737 (Tex. App.—Texarkana 2006, no pet.) (order appointing permanent guardian was void because statute requiring specific waiting period before trial court action on application was not complied with, thereby depriving court of power to act); Ortiz v. Gutierrez, 792 S.W.2d 118, 119 (Tex. App.—San Antonio 1989, writ dism’d) (holding personal service requirement under former guardianship statute was jurisdictional and, therefore, trial court properly dismissed guardianship proceeding when proposed ward had not been personally served).
But appellate courts recently have indicated that a lack of personal service will not automatically void an appointment. For example, in In re Guardianship of Bays, 355 S.W.3d 715, 719 (Tex. App.—Fort Worth 2011, orig. proceeding), the appellate court found that substituted service under rule 106 of the Texas Rules of Civil Procedure may be an accepted method of personal service in a temporary guardianship setting. In Bays, the record confirmed that “after multiple attempts to serve Bays by the certified process server under the methods that provide proof of actual service, the process server resorted to court order; and in compliance with Rule 106 and that order, he served Bays by attaching the notice to her door.” Bays, 355 S.W.3d at 719 (citing Tex. R. Civ. P. 106(b)). The record also established that the process server’s affidavit, a motion for substituted service and related order, and a return by the process server were all on file prior to the temporary guardianship hearing. Bays, 355 S.W.3d at 719. Therefore, alternative service had been properly made.
Likewise, the Beaumont court of appeals addressed whether strict compliance with the statute was always required when serving the proposed ward with notice that an application for guardianship had been filed. See In re Guardianship of Jordan, 348 S.W.3d 401 (Tex. App.—Beaumont 2011, no pet.). In Jordan, the party complaining about the lack of strict compliance with the statute was actually the person preventing service of citation on the proposed ward. After reviewing and comparing the opinions of other appellate courts requiring strict compliance, the court considered the Texas Supreme Court decision in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), which softened the strict compliance rule in some instances. In Dubai Petroleum Co., the supreme court addressed the issue of a trial court’s subject matter jurisdiction when a party failed to strictly comply with a statute. Softening the punitive effect of technical noncompliance, the court noted that “it seems perverse to treat a judgment as perpetually void merely because the court or the parties made a good-faith mistake in interpreting the law.” Dubai Petroleum Co., 12 S.W.3d at 76. The court further noted that “the modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction.” Dubai Petroleum Co., 12 S.W.3d at 76 (quoting Restatement (Second) of Judgments § 11 cmt. e, at 113 (1982)). As the Jordan court observed, the supreme court “overruled its precedent that a failure to establish a statutory prerequisite deprived a court of subject matter jurisdiction.” Jordan, 348 S.W.3d at 409 (citing Dubai Petroleum Co., 12 S.W.3d at 76). Applying this same reasoning in a guardianship context, the Jordan court found “no clear legislative intent that compliance with a specific method of obtaining a person’s presence in court is necessary to confer subject matter jurisdiction to bind parties who have made appearances in court” and found the court had authority to appoint a guardian even though the ward was not personally served. See Jordan, 348 S.W.3d at 410.
Strict adherence to the statutory notice requirements was also eroded in the case of In re Guardianship of V.A., 390 S.W.3d 414 (Tex. App.—San Antonio 2012, pet. denied). In that case, the appellate court held that the failure to serve the father of the proposed ward was not error where the father’s parental rights had been terminated. Furthermore, the failure to personally serve the ward’s managing conservator (although given notice) was excused (under former Texas Probate Code section 633(c)(3), now recodified as Tex. Est. Code § 1051.103) because the party complaining could not assert the rights of another (here a jus tertii argument). The appellate court also relied on former Probate Code section 633(f) (now recodified as Tex. Est. Code § 1051.104(c)) for the proposition that failure to comply with certain notice provisions does not affect the validity of a guardianship. V.A., 390 S.W.3d at 417. Also excused was the failure to serve adult siblings under section 633(d)(2) (now section 1051.104(a)(2)) and the hospital administrator under section 633(d)(2) (now section 1051.104(a)(3)). In other words, while strict adherence to the statutory service and notice requirements is the goal, there are instances in which failure to comply does not render the guardianship void.
§ 10.2:5Jurisdictional Conflicts between Family Court and Probate Court
Contested Guardianship of Minor’s Person: If an interested person contests an application for the appointment of a guardian of the person of a minor or seeks the removal of a guardian of the person of a minor, the judge, on the judge’s own motion, may transfer all matters related to the guardianship proceeding to a court of competent jurisdiction in which a suit affecting the parent-child relationship (SAPCR) under the Texas Family Code is pending (that is, a district court or, in some instances, a county court at law). See Tex. Est. Code § 1022.008. Section 1022.008 addresses the conflicting issues involving the custody or right to custody of a minor. (Note: There is no similar provision relating to a contested guardianship of a minor’s estate.) See Tex. Est. Code § 1022.008.
The transferring court (that is, the probate court) may retain jurisdiction over the minor ward’s estate and even over another minor who may also be the subject of the suit. Tex. Est. Code § 1022.008. The receiving court is required to apply the provisions of the Family Code, including sections 155.005 and 155.205 of the Family Code. Tex. Est. Code § 1022.008.
Contested Guardianship of Adult Disabled Child: Jurisdictional issues often arise between the family and probate courts when a disabled child who was previously the subject of a SAPCR reaches adulthood. The primary issue is whether the family court retains jurisdiction over issues relating to the adult disabled child’s person or estate or whether the probate court gains exclusive jurisdiction.
Section 154.309(c) of the Family Code arguably grants the family court that originally presided over the SAPCR continuing, exclusive jurisdiction over the adult disabled child. Tex. Fam. Code § 154.309(c). However, section 154.309 of the Family Code, addressing the possession of or access to an adult disabled child, is located in the chapter entitled “Child Support” rather than in the chapter of the Family Code that relates to possession or access. See Tex. Fam. Code § 154.309. In contrast, the Texas Estates Code provides that all applications for guardianship must be filed with the court that presides over guardianship proceedings, such as a statutory probate court, county court at law, other statutory court exercising the jurisdiction of a probate court, constitutional county court, or county court. See Tex. Est. Code § 1022.002.
One case addressing this issue is Garland v. Garland, 868 S.W.2d 847 (Tex. App.—Dallas 1993, no writ). In Garland, a family district court ordered continuing support payments past the age of majority for a mentally incapacitated child. The child’s father subsequently filed an application for guardianship in a statutory probate court when the child reached the age of twenty-two. The child’s mother, previously appointed the child’s managing conservator by the family court, filed a motion to dismiss alleging the family court had continuing, exclusive jurisdiction over the child, even after the child reached majority. The statutory probate court granted the motion and dismissed the guardianship application. On appeal, the appellate court held that the statutory probate court erred in dismissing the application because the statutory probate court, rather than the family court, has original, exclusive, and mandatory jurisdiction over the guardianship proceeding. Garland, 868 S.W.2d at 850.
Matters Related to Guardianship Proceeding: Section 1022.005 of the Estates Code provides that “[a] cause of action related to a guardianship proceeding of which the statutory probate court has exclusive jurisdiction as provided by Subsection (a) must be brought in the statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 1022.006 or with the jurisdiction of any other court.” Tex. Est. Code § 1022.005.
Concurrent Jurisdiction with District Court: A statutory probate court has concurrent jurisdiction with the district court in (1) a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a guardian and (2) an action involving a guardian in which each other party aligned with the guardian is not an interested person in the guardianship. Tex. Est. Code § 1022.006. Sections 1022.001 and 1022.005 of the Estates Code also confer jurisdiction on the statutory probate court, rather than the district court, to hear all applications, petitions, and motions regarding guardianships in counties in which there is a statutory probate court. See Tex. Est. Code §§ 1022.001, 1022.005; see also In re Graham, 971 S.W.2d 56 (Tex. 1998) (probate court may transfer to itself divorce proceeding pending in family district court); In re J7S Inc., 979 S.W.2d 374, 377 (Tex. App.—Houston [14th Dist.] 1998, pet. dism’d); Garland, 868 S.W.2d at 850. In counties in which there is no statutory probate court, all applications, petitions, and motions regarding guardianships are heard by the county court at law, a statutory court exercising the jurisdiction of a probate court, the constitutional county court, or the county court. See Tex. Est. Code §§ 1022.001–.004.
§ 10.2:6Jurisdictional Issues Generally
The jurisdiction of a guardianship court depends on whether it is a statutory probate court. See Tex. Est. Code § 22.007(c) (formerly Texas Probate Code sections 606 and 606A). Furthermore, the application of this jurisdictional section depends on when the proceeding was commenced. See Acts 2011, 82d Leg., R.S., ch. 1085, § 43 (S.B. 1196), eff. Sept. 1, 2011 (providing that “Sections 605, 608, and 609, Texas Probate Code, as amended by this Act, and Sections 606A, 607A, 607B, 607C, 607D, and 607E, Texas Probate Code, as added by this Act, apply only to an action filed or a proceeding commenced on or after the effective date of this Act. An action filed or proceeding commenced before the effective date of this Act is governed by the law in effect on the date the action was filed or the proceeding was commenced, and the former law is continued in effect for that purpose.”). See also Acts 2009, 81st Leg., ch. 680, § 1, eff. Jan. 1, 2014, regarding the effective date of any substantive change made by the enactment of the Texas Estates Code.
Generally, except when the jurisdiction of a statutory probate court is concurrent with that of a district court or any other court, a statutory probate court has “exclusive jurisdiction of all guardianship proceedings.” Tex. Est. Code § 1022.005. Section 1021.001 defines matters related to a guardianship proceeding depending on whether the court is a statutory probate court. See Tex. Est. Code § 1021.001.
The amount in controversy does not affect the jurisdiction of a constitutional or statutory county court exercising probate jurisdiction. See Womble v. Atkins, 331 S.W.2d 294, 298–99 (Tex. 1960).
§ 10.2:7Role of Mandatory Venue Provisions
Over the last decade, there has been significant debate about whether the probate courts’ jurisdiction trumps other mandatory venue provisions. Tex. Est. Code § 1022.006 provides that a statutory probate court has concurrent jurisdiction with the district court in—
(1)a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a guardian; and
(2)an action involving a guardian in which each other party aligned with the guardian is not an interested person in the guardianship.
Texas Estates Code section 1022.007(b) provides that “[n]otwithstanding any other provision of this title, the proper venue for an action by or against a guardian, ward, or proposed ward for personal injury, death, or property damages is determined under Section 15.007, Civil Practice and Remedies Code.” Tex. Est. Code § 1022.007(b). In 2005, the Texas Supreme Court held that a statutory probate court may not override otherwise mandatory venue provisions. See Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615 (Tex. 2005). In Gonzalez, the court held that a statutory probate court’s attempt to transfer a case from another court to itself is prohibited when venue of the proceeding is not otherwise proper. For example, if a guardian sued for personal injuries to a ward, the suit by the guardian of the estate could be transferred only to a statutory probate court where the guardianship is pending if the original venue of the case would properly be brought in the same county as the statutory probate court. The holding appears to expressly reverse the opinion of In re Houston Northwest Partners, Ltd., 98 S.W.3d 777 (Tex. App.—Austin 2003, orig. proceeding), and other prior opinions suggesting to the contrary that a statutory probate court could override mandatory venue provisions.
Regardless of whether the suit is heard in district court or a statutory probate court, the guardian of the person or the estate of a ward may not be excluded from attending a legal proceeding in which the ward is a party or participating as a witness. Tex. Est. Code § 1151.005.
§ 10.2:8Transfer to Statutory Probate Court
If an action is pending in a district court, constitutional county court, or statutory county court that relates to a pending guardianship proceeding, any party or person interested in the guardianship may seek to transfer the action to the probate court. The Texas Estates Code permits a judge of a statutory probate court, on the motion of a party to the action or of a person interested in the guardianship, to—
1.transfer to the judge’s court from a district, county, or statutory court a cause of action that is a matter related to a guardianship proceeding pending in the statutory probate court, including a cause of action that is a matter related to a guardianship proceeding pending in the statutory probate court and in which the guardian, ward, or proposed ward in the pending guardianship proceeding is a party; and
2.consolidate the transferred cause of action with the guardianship proceeding to which it relates and any other proceedings in the statutory probate court that are related to the guardianship proceeding.
Tex. Est. Code § 1022.007(a), (b); see also Tex. Gov’t Code ch. 25 (for probate court provisions relating to particular counties).
The transfer provisions should not be seen as a means to circumvent otherwise mandatory venue provisions. In Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615 (Tex. 2005), the Texas Supreme Court addressed the transfer issue directly. The court held that if venue was not originally proper in the statutory probate court, no transfer can be made unilaterally to bring the litigation into the guardianship estate or a statutory probate court. Gonzalez, 159 S.W.3d at 622. See the related discussion regarding venue and Tex. Est. Code § 1022.007(b) at section 10.2:7 above.
§ 10.2:9Transfer for Want of Venue
Once a guardianship proceeding has commenced, if the court determines that venue does not lie in that county, on application of any interested person the court must transfer the proceeding to a proper county. Tex. Est. Code § 1023.002(c). The appropriate venue for appointment of a guardian depends on the type of guardianship action and the venue rules in Texas Estates Code chapter 1023.
§ 10.3Proposed Ward’s Right to Private Attorney
The Texas Estates Code clearly recognizes the right to counsel by requiring the appointment of an attorney ad litem for every proposed ward on the filing of an application for guardianship. See Tex. Est. Code § 1054.001. The right to counsel of one’s own choice is fundamental. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). In any guardianship proceeding, a proposed ward (who is found to possess the capacity to contract) is authorized to retain counsel rather than have an attorney ad litem appointed for him. See Tex. Est. Code § 1054.006.
The proper procedural vehicle to make a threshold determination of the proposed ward’s capacity to contract is a “Motion to Show Authority” pursuant to Tex. R. Civ. P. 12. In this sworn motion, the privately retained attorney is cited to appear and bears the burden to show his authority to act on behalf of the proposed ward. A “Rule 12” motion is the exclusive method of questioning an attorney’s authority to represent a party and, therefore, must be heard and determined before the parties announce ready for trial. Price v. Golden, No. 03-99-00769-CV, 2000 WL 1228681 (Tex. App.—Austin Aug. 31, 2000, no pet.). Such a motion might be a conflict for an attorney ad litem, who may be put in a position to defend his client’s capacity.
The key issue will be whether the proposed ward has sufficient capacity to understand the concept of the contractual relationship between attorney and client. The motion gives the court an early opportunity to observe the proposed ward and sometimes results in the pursuit of a less restrictive alternative. However, if the attorney cannot sustain his burden to show such authority (and demonstrate the threshold capacity of the proposed ward to be able to retain counsel), he is barred from representing the proposed ward in the proceeding. Tex. R. Civ. P. 12. While this is a fairly low burden, it is dispositive on the issue. Logan v. McDaniel, 21 S.W.3d 683 (Tex. App.—Austin 2000, pet. denied).
If the proposed ward lacks the capacity to hire an attorney, retained counsel is not entitled to recover fees for legal services performed in a guardianship contest. Breaux v. Allied Bank of Texas, 699 S.W.2d 599 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.), cert. denied, 479 U.S. 1002 (1986).
§ 10.3:1Modification and Restoration
A ward has the right to retain a private attorney to represent him in seeking a modification of the guardianship or the restoration of his rights. Tex. Est. Code § 1202.103(a). The court may order that the ward’s attorney be compensated out of the ward’s estate “only if the court finds that the attorney had a good faith belief that the ward had the capacity necessary to retain the attorney’s services.” Tex. Est. Code § 1202.103(b). In appropriate circumstances many judges will appoint the ward’s choice of an attorney as the attorney ad litem and discharge the court’s appointee.
§ 10.3:2Considerations before Representation
The ward or proposed ward does not have an absolute right to private representation. Therefore, an attorney who is considering representing a ward or proposed ward should use reasonable means to confirm that the alleged incapacitated person has the requisite capacity to retain an attorney. For example, the attorney may meet the potential client to determine whether he appears to be acting independently; understands that he is seeking to retain the attorney to represent him; is generally oriented to time, place, and person; and understands the basic financial arrangement and resulting obligations. If the court has appointed an attorney ad litem, the attorney should speak with the proposed ward’s court-appointed attorney.
Further, it is advisable to seek the opinion of the potential client’s physician or a doctor qualified to render a medical opinion regarding the potential client’s capacity to enter into a contract. If possible, the attorney should obtain a written opinion.
§ 10.3:3Payment of Private Attorney’s Fees
An attorney who successfully defeats an application for guardianship or restores the ward’s capacity can look to the capacitated client for payment. However, an attorney who is unsuccessful in defending against a guardianship or restoring a ward may still be entitled to fees if the court finds that the attorney has acted with a good-faith belief that the ward or proposed ward had the capacity to retain the attorney’s services. Tex. Est. Code § 1202.103(b); see also Breaux v. Allied Bank of Texas, 699 S.W.2d 599 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.).
§ 10.4Initial Considerations in Litigation
§ 10.4:1Assignment of Statutory Probate Judge
Litigants in counties in which there is no statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court may request the assignment of a statutory probate judge to hear the contested portion of the guardianship proceeding. Tex. Est. Code § 1022.003(a)(1); see also Tex. Gov’t Code § 25.0022. If the county judge has not transferred the contested portion to the district court at the time the motion requesting the assignment is filed, the judge must grant the motion and may not transfer the matter to district court unless the party withdraws the motion. Tex. Est. Code § 1022.003(b). Failure to comply with the request is an abuse of the presiding county judge’s discretion. See In re Vorwerk, 6 S.W.3d 781 (Tex. App.—Austin 1999, no pet.) (assignment to district court after request for assignment of statutory judge was abuse of trial court’s discretion). On the conclusion of the contested matter, including an appeal, the statutory probate judge shall transfer the resolved portion of the case back to the county court. Tex. Est. Code § 1022.003(g). If only the contested matter in a guardianship proceeding is assigned to a statutory probate court judge, or if the contested matter in a guardianship proceeding is transferred to a district court, the county court shall continue to exercise jurisdiction over the management of the guardianship, other than the contested matter, until final disposition of the contested matter is made. Tex. Est. Code § 1022.003(h).
In a guardianship proceeding, the court costs of the proceeding, including the costs of any guardians ad litem, attorneys ad litem, court visitors, mental-health professionals, and interpreters appointed by the court in an amount the court considers equitable and just, are paid as follows, and the court shall issue judgment accordingly:
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 under Texas Estates Code chapter 1301 and the court determines it is in the best interest of the ward;
3.by the party to the proceeding who incurred the costs, unless that party filed, on the party’s own behalf, an affidavit of inability to pay the costs under rule 145 of the Texas Rules of Civil Procedure, that shows the party is unable to afford the costs, if—
a.there is no guardianship estate or no management trust has been created for the ward’s benefit; or
b.the assets of the guardianship estate or management trust, as appropriate, are insufficient to pay the costs; or
4.out of the county treasury if—
a.there is no guardianship estate or management trust or the assets of the guardianship estate or management trust, as appropriate, are insufficient to pay the costs; and
b.the party to the proceeding who incurred the costs filed, on the party’s own behalf, an affidavit of inability to pay the costs under rule 145 of the Texas Rules of Civil Procedure, that shows the party is unable to afford the costs.
Bad-Faith Exception: If the court finds that a party in a guardianship proceeding acted in bad faith or without just cause in prosecuting or objecting to an application in the proceeding, the court may order the party to pay all or a part of the costs of the proceeding. If the party found to be acting in bad faith or without just cause was required to provide security for the probable costs of the proceeding under section 1053.052 of the Estates Code, the court shall first apply the amount provided as security as payment for costs ordered by the court. If the amount provided as security is insufficient to pay the entire amount ordered by the court, the court shall render judgment in favor of the estate against the party for the remaining amount. Tex. Est. Code § 1155.151(c).
As originally enacted, the provisions for taxing costs in a guardianship specified that only the estate of the ward could bear the costs of the proceeding. See Tex. Est. Code § 1155.151 (formerly Texas Probate Code section 669(a)). This led to many situations in which the ward’s estate had to bear the expense of otherwise unfounded contests. See generally In re Guardianship of Vavra, 365 S.W.3d 476 (Tex. App.—Eastland 2013, no pet.); In re Mitchell, 342 S.W.3d 186 (Tex. App.—El Paso 2011, no pet.); Trevino v. Reese, No. 01-10-00717-CV, 2011 WL 2436523 (Tex. App.—Houston [1st Dist.] June 16, 2011, no. pet.); In re Guardianship of Marburger, 329 S.W.3d 923 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.); In re Guardianship of Person & Estate of A.M.K, No. 04-0800268-CV, 2009 WL 1028074 (Tex. App.—San Antonio Apr. 15, 2009, no pet.); In re Guardianship of Thomas, No. 02-08-299-CV, 2009 WL 670187 (Tex. App.—Fort Worth Mar. 12, 2009, no pet.); In re Guardianship of Humphrey, No. 12-07-00118-CV, 2009 WL 388955 (Tex. App.—Tyler Feb. 18, 2009, pet. denied); In re Guardianship of Humphrey, No. 12-07-00225-CV, 2009 WL 388958 (Tex. App.—Tyler Feb. 18, 2009, pet. denied); In re Guardianship of Humphrey, No. 12-06-00222-CV, 2008 WL 2445503 (Tex. App.—Tyler June 18, 2008, pet. denied); Ajudani v. Walker, 232 S.W.3d 219 (Tex. App.—Houston [1st Dist.] 2007, no pet.); In re Van Brookshire, No. 01-06-00789-CV, 2006 WL 2690254 (Tex. App.—Houston [1st Dist.] Sept. 21, 2006, orig. proceeding).
Recent amendments to the provisions for the taxing of costs and the awarding of fees of ad litems allow the taxing of costs and order reimbursement of attorney’s fees of persons found to have acted without good faith or just cause. See Tex. Est. Code §§ 1053.052, 1155.054.
An applicant or contestant in a guardianship proceeding may be required—on motion, notice, and hearing—to give security for the probable costs of the guardianship proceeding within twenty days of the date of the order. Failure to provide security will result in dismissal of the contest or opposition. Tex. Est. Code § 1053.052. See also Tex. R. Civ. P. 143.
This is a significant issue because, in guardianship matters, the proposed ward has little or no control over his own estate. Minors and persons non compos mentis are non sui juris and remain altogether under the court’s protection, even when represented by a next friend or guardian. Byrd v. Woodruff, 891 S.W.2d 689, 704 (Tex. App.—Dallas 1994, writ dism’d by agr.); M.K.T. Railroad Co. v. Pluto, 156 S.W.2d 265, 268 (Tex. 1941); Greathouse v. Fort Worth & Denver City Railway Co., 65 S.W.2d 762, 765 (Tex. Comm’n. App. 1933). It is the responsibility of the court in such an instance to protect the estate of an alleged incapacitated person. Tex. Est. Code § 1201.003 (judge’s liability).
Additionally, unlike most civil cases, guardianship proceedings require the appointment of one or more ad litems, proportionally increasing the probable costs of a contest. Contested guardianship proceedings are highly structured, and the costs incurred can quickly go far beyond the normal filing fees and discovery items associated with ordinary civil cases.
§ 10.4:3Parties from Whom Security May Be Required
The laws regulating costs in ordinary civil cases apply to a guardianship proceeding unless otherwise expressly provided for. Tex. Est. Code § 1053.051. In ordinary civil cases only a party “who seeks affirmative relief” (Tex. R. Civ. P. 143) or “seeks judgment against any other party” (Tex. R. Civ. P. 147) may be ruled to give security for costs. However, in guardianship proceedings, because any “interested party” is allowed to contest any portion of a guardianship administration, the vulnerability of the proposed ward’s estate to substantial costs from repeated contests is greatly increased. As a result, in guardianship proceedings, security may be required from persons who are simply complaining about or opposing a guardianship matter, regardless of whether they are seeking affirmative relief. Tex. Est. Code § 1053.052. An exception to this provision is that no security for costs may be required of a guardian, attorney ad litem, or guardian ad litem appointed under Texas Estates Code chapter 1053 in any suit brought by the guardian, attorney ad litem, or guardian ad litem in their respective fiduciary capacities. Tex. Est. Code § 1053.052(c).
§ 10.4:4Timing and Determination of Security Amount
A motion for security for costs may be filed and heard at any time before the trial of an application, complaint, or opposition relating to a guardianship proceeding. Such a motion may be filed by an officer of the court or a person interested in the guardianship or in the welfare of the ward. Tex. Est. Code § 1053.052(b).
Unlike in civil cases in which the party seeking affirmative relief may be ordered to deposit a sum “sufficient to pay the accrued costs,” in a guardianship proceeding the court is to order security for the “probable costs of the proceeding.” Tex. Est. Code § 1053.052; see also Tex. R. Civ. P. 146. The court must receive proof of the probable costs expected to be incurred during the proceeding.
A party ordered to provide security for costs has three options.
Writ of Attachment: A writ of attachment may be filed on property, real or personal, of the person giving security. Tex. R. Civ. P. 146 (regarding attachments, see Tex. R. Civ. P. 592). Writs of attachment are somewhat arcane and maintenance-intensive procedures requiring the person allowing the attachment to have sufficient attachable property in the county and to allow additional attachments if property is sold or values drop. For this reason, writs of attachment are rarely used. See Tex. R. Civ. P. 592–609.
Surety Bond: In return for a premium payment, a party may provide security for costs by posting a surety bond under Tex. R. Civ. P. 148. The bond should be one with sureties (preferably corporate) to secure costs, but the court may not fix a specific amount for anticipated costs. Johnson v. Smith, 857 S.W.2d 612, 615 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding); Smith v. White, 695 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1985, orig. proceeding). The bond is, in effect, an open bond to secure payment of whatever costs might accrue. Mosher v. Tunnel, 400 S.W.2d 402, 404 (Tex. App.—Houston [1st Dist.] 1966, writ ref’d n.r.e.). A party seeking affirmative relief may be required to give security for costs at any time before final judgment. Failure to comply within twenty days of receiving notice will result in dismissal of the claim. Tex. R. Civ. P. 143. A bond for a specified amount, rather than an open-ended bond, will not satisfy rule 143. Clanton v. Clark, 639 S.W.2d 929, 930–31 (Tex. 1982); Hager v. Apollo Paper Corp., 856 S.W.2d 512, 514–15 (Tex. App.—Houston [1st Dist.] 1993, no writ). All bonds given as security for costs shall authorize judgment against all the obligors in the bond for the costs, to be entered in the final judgment of the cause. Tex. R. Civ. P. 144.
Cash: A party may deposit cash with the clerk of the court in lieu of the bond. Tex. R. Civ. P. 146. Like attachments, the cash deposit is a maintenance-intensive option. If the “probable costs” exceed the cash deposit, additional cash deposits will be necessary. However, if either an attachment or bond is furnished, no further security is required. Tex. R. Civ. P. 148.
The option lies with the party ruled for costs, and not the court, about whether a cost bond shall be furnished or a deposit made in lieu of bond. Buck v. Johnson, 495 S.W.2d 291, 298 (Tex. App.—Waco 1973, no writ).
Failure to give security as ordered within twenty days of the order will result in dismissal of the contest or opposition. Tex. R. Civ. P. 143; In re Guardianship of Thomas, No. 02-08-299-CV, 2009 WL 670187 (Tex. App.—Fort Worth Mar. 12, 2009, no pet.). A writ of mandamus can be used to correct the requirement of payment of a fixed amount of security prior to final judgment. TransAmerican Natural Gas Corp. v. Mancios, 877 S.W.2d 840, 844 (Tex. App.—Corpus Christi–Edinburg 1994, orig. proceeding [mand. overr.]).
§ 10.4:7Right to Request Jury Trial
Authority under Texas Estates Code: Any party to a contested guardianship proceeding, including the proposed ward, may request a jury trial. Tex. Est. Code §§ 1055.052, 1101.052. Several provisions of the Texas Estates Code speak to this right. Section 55.002 expressly states that, “[i]n a contested probate or mental illness proceeding in a probate court, a party is entitled to a jury trial as in other civil actions.” Tex. Est. Code § 55.002. Further, the Estates Code states that the laws and rules governing estates of decedents apply to guardianships as well. Tex. Est. Code § 1001.002.
Authority under Texas Constitution: The Texas Constitution guarantees the right to a jury trial. Article V, section 10, provides:
In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.
Article V, section 10, confers a right to trial by jury when a proceeding is styled as a “cause.” The test for what constitutes a “cause” is not based on the nature of the contest but merely whether there is a matter of fact for a jury to decide. Tolle v. Tolle, 104 S.W. 1049, 1050 (Tex. 1907) (contest over letters of administration is cause that warrants right to jury trial); Cockrill v. Cox, 65 Tex. 669 (1886); Linney v. Peloquin, 35 Tex. 29 (1872) (will contest cause that warrants right to jury trial). The Texas Supreme Court has broadly construed article V, section 10, to apply to all causes, both in law and at equity. See also Southwestern Bell Telephone v. Public Utility Commission, 571 S.W.2d 503, 517 (Tex. 1978).
The drawing of jury panels, selection of jurors, and practice in the statutory probate courts must conform to that prescribed by law for county courts. However, practice, procedure, rules of evidence, issuance of process and writs, juries, and all other matters pertaining to the conduct of trials and hearings in the statutory probate courts involving those matters of concurrent jurisdiction with district courts are governed by the laws and rules pertaining to district courts. The number of jurors is also governed by the laws and rules pertaining to district courts, provided, however, that parties in a trial proceeding heard in a statutory probate court may agree to try a case with fewer than twelve jurors. Tex. Gov’t Code § 25.0027.
§ 10.4:8Guardianship Proceedings That May Be Tried to Jury
Permanent Guardianship: Although a party (including a proposed ward) in a proceeding seeking the appointment of a permanent guardian may request a jury trial, the right to a jury trial may be waived if not timely requested. Therefore, the attorney must be punctual in requesting the jury trial and in paying the jury fee. Tex. Est. Code §§ 1055.052, 1101.052. The constitutional right to a trial by jury can be waived by the express actions of a party or the failure to timely object to the rulings of the court. See Goode v. McGuire, No. 01-20-00028-CV, 2021 WL 4432534 (Tex. App.—Houston [1st Dist.] Sept. 28, 2021, no pet. h.).
Temporary Guardianship: A jury trial is not authorized in a temporary guardianship. In re Kuhler, 60 S.W.3d 381, 382–83 (Tex. App.—Amarillo 2001, no pet.). This is true, according to the appellate court in Kuhler, because the statutes governing temporary guardianships provide that “[t]he court shall appoint a temporary guardian” after a hearing. See Tex. Est. Code § 1251.010. In other words, whether to appoint a temporary guardian is apparently considered a question of law, not of fact.
§ 10.4:9Issues That May Be Tried to Jury
For sample pattern jury charges relating to guardianship proceedings, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family & Probate.
While not an exhaustive list, the following issues may be tried to a jury.
Capacity: It is well established in Texas that the issue of capacity is one of fact for a jury. See Krause v. White, 612 S.W.2d 639, 643 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.) (temporary guardianship); In re Guardianship of Dahl, 590 S.W.2d 191, 198 (Tex. App.—Amarillo 1979, writ ref’d n.r.e.) (permanent guardianship). A determination of incapacity of an adult ward must be evidenced by recurring acts or occurrences in the preceding six months and not by isolated instances of negligence or bad judgment. Tex. Est. Code § 1101.102.
Supports and Services: A jury may determine whether, by clear and convincing evidence, there are supports and services available to the proposed ward that would make the appointment of a permanent guardian of the person or estate unnecessary. See Tex. Est. Code § 1101.101(a)(1)(E).
Best Interest of Proposed Ward: There must be a finding by clear and convincing evidence that it is in the best interest of the proposed ward to appoint a guardian and whether it should be a guardian of the person or guardian of the estate or both. Tex. Est. Code § 1101.101(a)(1)(B), (a)(1)(C).
Suitability to Serve: Whether a party is suitable to serve as guardian is also an issue of fact for a jury. See In re Guardianship of Norman, 61 S.W.3d 20, 22–23 (Tex. App.—Amarillo 2001, pet. denied); Ulrickson v. Hawkins, 696 S.W.2d 704, 708 (Tex. App.—Fort Worth 1985, writ ref’d n.r.e.).
Selection between Suitable Persons: If two applicants are qualified to serve as guardian, the issue of who will best serve the needs of the ward may be submitted to a jury. See Chapa v. Hernandez, 587 S.W.2d 778, 781 (Tex. App.—Corpus Christi–Edinburg 1979, no writ).
Restoration: When considering restoration, the jury must take “supports and services” into account and decide if the ward should be restored completely or partially with supports and services and whether that restoration should be for the person or estate or both. Tex. Est. Code § 1202.051(a).
§ 10.4:10Considerations in Requesting Jury Trial
The attorney in a guardianship proceeding must decide whether to request a jury. Obviously, the decision is a difficult one, and each attorney’s decision will largely depend on whom he represents and the issues before the court.
General Considerations: Statutory probate judges are familiar with the test of incapacity and have seen the condition in many forms. They recognize that a proposed ward’s mental status may have improved because of recent compliance with his medication schedule but that this improvement may be temporary. Members of the jury often identify with the proposed ward. The prospect of a jury trial forces the party seeking the guardianship to consider whether the matter can be resolved without the time and expense of a trial.
Spouse Seeking to Serve as Guardian: Spouses have priority to be appointed guardians unless found to be disqualified. Tex. Est. Code § 1104.102(1). If otherwise eligible and not disqualified, a spouse need not request a jury because of the priority status granted to him by statute. If, however, an allegation is asserted that the spouse be disqualified or is unsuitable to serve, perhaps because of alleged neglect, cruelty, or abuse to the proposed ward, the attorney seeking to have the spouse appointed may consider requesting a jury.
Nonspouse Seeking to Serve as Guardian: If two or more persons are seeking appointment as guardian, due consideration should be given to the character, education, transgressions, and appearance of one candidate versus the other. A key factor can be the applicant’s relationship to the proposed ward. See Tex. Est. Code § 1104.102 (appointment preferences). If an individual is not disqualified and is entitled to serve as guardian in preference over the other applicant, a jury trial is generally an unnecessary expense. See section 10.5:3 below regarding disqualification.
§ 10.4:11Right to Closed Hearing
If privacy concerns or media attention are important considerations, the proposed ward, an ad litem, or a privately retained attorney may request a closed hearing. Tex. Est. Code §§ 1101.051(c), 1251.008(6). Such requests should be timely and in writing to preserve the record.
§ 10.4:12Continuance—Temporary Guardianship
The hearing to confirm the appointment of a temporary guardian may be extended by agreement but by no more than thirty days. The proposed ward’s attorney must consent to the extension. Tex. Est. Code § 1251.006(c). If personal citation has not been delivered to the proposed ward, a continuance is mandated. The continuance can be for the entire period of the temporary guardianship (see Tex. Est. Code §§ 1251.008, 1251.151); however, this is not the best practice. A full extension without an affirmation hearing raises constitutional due-process issues that have not been tested.
§ 10.4:13Temporary Guardianship Pending Contest
If a temporary or permanent guardianship is contested, the court may appoint a temporary guardian pending contest on its own motion or on the motion of another, grant a temporary restraining order under Tex. R. Civ. P. 680, or both without additional citation if the court finds the appointment or issuance of the order is necessary. Tex. Est. Code § 1251.051. Temporary guardianships pending contest are governed by Texas Estates Code section 1251.051, which provides that—
the court, on the court’s own motion or on the motion of any interested party, may appoint a temporary guardian or grant a temporary restraining order under Rule 680, Texas Rules of Civil Procedure, or both, without issuing additional citation if the court finds that the appointment or the issuance of the order is necessary to protect the proposed ward or the proposed ward’s estate.
Tex. Est. Code § 1251.051 (emphasis added).
A temporary guardian qualifies by posting bond and filing the oath of office. The temporary guardian’s term expires either at the conclusion of the hearing on the contest, when a court-appointed permanent guardian qualifies, or on the nine-month anniversary of the date the temporary guardian qualifies, unless the term is extended by court order issued after a motion to extend the term is filed and a hearing on the motion is held. Tex. Est. Code § 1251.052(b).
The court must find probable cause to believe that the appointment is necessary to protect the proposed ward or his estate, or both, and that there is substantial evidence of incapacity. Tex. Est. Code § 1251.001. The presence of imminent danger is not an essential element in this determination. To the extent the court will allow the selection, it is best if the parties agree to a third party to serve pending contest. Such agreement will not be construed by the court as a tacit admission for the necessity of a guardian. The court may, however, take judicial notice of arguments made in temporary guardianship proceedings and in any subsequent proceedings. Trimble v. Texas Department of Protective & Regulatory Service, 981 S.W.2d 211, 215 (Tex. App.—Houston [14th Dist.] 1998, no pet.). See forms 10-1 through 10-3 in this chapter.
§ 10.5Challenges to Standing in Guardianship Proceedings
Subject to a few exceptions, anyone may commence a guardianship proceeding, contest a guardianship proceeding, or contest the appointment of a particular person as guardian. Tex. Est. Code § 1055.001(a); see also Torres v. Ramon, 5 S.W.3d 780, 782 (Tex. App.—San Antonio 1999, no pet.).
Some individuals may, however, lack standing to proceed with or be a party to a guardianship proceeding. See Allison v. Walvoord, 819 S.W.2d 624 (Tex. App.—El Paso 1991, mand. motion overr.). A person lacks standing if he has an interest adverse to the proposed ward. Early identification of an adverse interest will allow expeditious disposal of the issue of qualification to serve.
Additionally, some persons are disqualified from serving as guardian. See Tex. Est. Code §§ 1104.351–.358. Individuals disqualified under sections 1104.351–.358 may still have standing under section 1055.001 to contest the appointment of another person.
A person lacks standing to contest a guardianship proceeding if he has an interest adverse to the proposed ward. Tex. Est. Code § 1055.001. If an individual lacks standing, he may not—
1.file an application to create a guardianship;
2.contest the creation of a guardianship;
3.contest the appointment of a certain person or persons as guardian of the proposed ward’s person or estate or both; or
4.contest an application to restore a ward’s capacity or modify the guardianship.
Tex. Est. Code § 1055.001(b). Note that the statute does not prohibit an individual from bringing the need for a guardian to the court’s attention informally through its investigator. In fact, this can be an important tool if a person has concerns about whether a proposed ward’s behavior rises to the level justifying a guardianship.
The Texas Estates Code does not define what constitutes an “adverse interest” or provide much, if any, guidance on what the court may deem to be one. See Tex. Est. Code § 1055.001(b). Some guidance on this issue is provided in Betts v. Brown, No. 14-99-00619-CV, 2001 WL 40337 (Tex. App.—Houston [14th Dist.] Jan. 18, 2001, no pet.) (not designated for publication). Further, no Texas court has clearly defined “adverse interest” under section 1055.001(b). However, the term adverse interest has been defined in cases decided under former Texas Probate Code section 681 (now Estates Code sections 1104.351–.358) and its predecessors. Estates Code section 1104.354 disqualifies a person from serving as guardian if he is asserting a claim to property that is adverse to the ward. See Tex. Est. Code § 1104.354(3). See also the discussion of the grounds for disqualification at section 10.5:3 below.
The court in Betts did point out that an adverse interest must be something other than the conditions of disqualification under former Probate Code section 681 (now Tex. Est. Code §§ 1104.351–.358).
Examples of individuals who may have an adverse interest include the following.
Potential Creditor: A potential creditor of a proposed ward clearly lacks standing to seek or contest a guardianship proceeding. Allison v. Walvoord, 819 S.W.2d 624 (Tex. App.—El Paso 1991, orig. proceeding [leave denied]).
In Allison, the wife filed an application seeking to be appointed limited guardian of her husband. At the time, her husband was the defendant in two lawsuits. The plaintiffs contested the application because they were concerned that the commencement of a guardianship proceeding and the appointment of a guardian would adversely affect future discovery. The wife challenged the plaintiffs’ standing to appear and contest her application for guardianship. The trial court (citing the former temporary guardianship statute) denied the wife’s motion and found the potential creditors had standing in the guardianship application. Allison, 819 S.W.2d at 625. The El Paso court of appeals reversed the trial court, directing it to strike the plaintiffs’ contest to the guardianship application, stating “[t]he act is to ‘protect the well-being of the individual’ and those with an adverse interest can hardly qualify as being persons interested in protecting his well-being.” Allison, 819 S.W.2d at 627.
Spouse with Financial Interest Adverse to Incapacitated Spouse: Although a spouse generally has priority to serve as guardian of an incapacitated mate, the spouse may be disqualified for having a financial interest adverse to the incapacitated spouse. For example, a spouse seeking a divorce at the time of the guardianship has an adverse interest. Further, a spouse may be disqualified if issues exist concerning the characterization of the couple’s marital estate. Dobrowolski v. Wyman, 397 S.W.2d 930 (Tex. App.—San Antonio 1965, no writ).
In Dobrowolski, the husband was appointed guardian of his wife of seventeen years. Both spouses had children from prior marriages and owned separate property. After the husband’s appointment, the wife’s daughter sought to remove him, arguing he was disqualified because he had claims potentially adverse to the ward regarding whether the couple’s property was community or separate. The trial court agreed. On appeal, the husband stated that he was not asserting claims to or seeking an account of their assets. Nonetheless, the court of appeals affirmed the husband’s removal, holding that guardians have a duty to determine the nature and extent of a ward’s estate. Dobrowolski, 397 S.W.2d at 932 (citing Dakan v. Dakan, 83 S.W.2d 620 (Tex. 1935)). Because the couple’s property had been commingled, a complete account would be needed to determine each spouse’s separate property. In determining the wife’s assets, the guardian would have the duty to protect her interests. Because of the possibility of conflicting claims during the accounting process, the husband was found to have an adverse interest and was disqualified. Dobrowolski, 397 S.W.2d at 932.
Parent with Financial Interest Adverse to Minor: Parents have priority to serve as guardians of their minor child’s estate. However, a parent may be disqualified if he or she has a financial interest adverse to the child. For example, in Phillips v. Phillips, the court held that a surviving parent who sought to be appointed guardian of her minor children’s estate had an interest adverse to her children relating to the settlement of her deceased spouse’s estate. Phillips v. Phillips, 511 S.W.2d 748, 750–51 (Tex. App.—San Antonio 1974, no writ).
Another common example of an adverse financial interest is that of a parent with a child support obligation.
Person with Duty to Account to Proposed Ward: Persons who owe a duty to account to the proposed ward may have an adverse interest. For example, an agent under a power of attorney that was executed by a ward before appointment of a guardian has a duty to account to the guardian of the ward’s estate. Tex. Est. Code § 751.133. Thus, the agent may have an adverse interest because, if he were appointed guardian, he would be accounting to himself for his prior actions.
Similarly, a partner in a partnership inherited by minor wards was disqualified to serve as guardian of the minors’ estates. In re Guardianship of Henson, 551 S.W.2d 136, 139 (Tex. App.—Corpus Christi–Edinburg 1977, writ ref’d n.r.e.).
Guarantor of Ward’s Promissory Note: A guarantor of a note or debt obligation of a proposed ward may have an adverse interest. Because of the strict claims requirements, a guardian can sometimes delay the payment of a ward’s debt obligations. If the person appointed guardian has previously executed a guarantee on the ward’s behalf, the guardian’s interest may conflict with that of the ward. Note, however, that some courts have opined that merely being indebted to the proposed ward does not automatically create an adverse interest. See In re Guardianship of Miller, 299 S.W.3d 179 (Tex. App.—Dallas 2009, no pet.).
Actual vs. Potential Adverse Interest: In Adcock v. Sherling, the court attempted to clarify the definition of “adverse interest” by distinguishing a potential adverse interest from an existing adverse interest. Adcock v. Sherling, 923 S.W.2d 74 (Tex. App.—San Antonio 1996, no writ). Potential adverse interests will not disqualify a person from seeking or contesting a guardianship proceeding.
The Adcock court held that the ward’s son did not have an “adverse interest” merely because he was holding a certificate of deposit for her benefit as trustee. The court noted that the evidence proved the son was not indebted to the ward, he had no claim adverse to the ward or her property, and that none of the funds represented by the certificate and accumulated interest had been spent. The court further noted that the record did not establish how the son’s duty as trustee of the trust would conflict with his role as guardian. Therefore, the court found that—
while there potentially could have been an adverse claim or a conflict of interest, there is, in fact, no such adverse claim or conflict because Adcock’s position concerning the money, that it is to be held by him and his brother to be used for their mother’s benefit, is the same interest that the estate has in the property.
Adcock, 923 S.W.2d at 77.
§ 10.5:2Procedure to Challenge Standing
The procedure for challenging standing in a guardianship is by motion in limine. See Tex. Est. Code § 1055.001(c); see also Womble v. Atkins, 331 S.W.2d 294, 298 (Tex. 1960). A motion in limine is essentially a trial on the issue of standing. Its purpose is to dispose of select issues before the trial on the merits.
If a contest is filed, the applicant (or contestant) should attempt to determine as soon as possible whether the opposing party may have an adverse interest. Discovery is useful in determining whether an adverse interest exists. If it ultimately appears that a party may have an adverse interest, a motion in limine should be filed as soon as possible and set for hearing. See Womble, 331 S.W.2d at 298. The challenged party is entitled to forty-five days’ notice of the initial hearing on the motion in limine. Tex. R. Civ. P. 245. See forms 10-4 and 10-5 in this chapter.
Matter of Law: In some cases, no genuine issue of fact exists about whether the party lacks standing under Texas Estates Code section 1055.001(b). For example, a party in a guardianship proceeding who is indebted to the proposed ward, as evidenced by a written promissory note or judgment, may be disqualified and lack standing unless the person pays off the debt. In such cases, the attorney should consider filing a motion for partial summary judgment seeking a ruling that the contestant has an adverse interest as a matter of law. This tactic may eliminate the necessity for a full evidentiary hearing on the motion in limine and minimize attorney’s fees and expenses.
Issue of Fact: If issues of fact exist about whether a party has an adverse interest, the court will hold a full evidentiary hearing on the motion in limine. Because standing is an issue for the court, a party is not entitled to a jury trial. See, e.g., Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 445–46 (Tex. 1993) (standing is jurisdictional and can be raised on appeal); Allison v. Walvoord, 819 S.W.2d 624, 627 (Tex. App.—El Paso 1991, orig. proceeding [leave denied]); Von Behren v. Von Behren, 800 S.W.2d 919, 923 (Tex. App.—San Antonio 1990, writ denied) (party to suit for managing conservator not entitled to jury trial on threshold issue of standing). However, each party may call and cross-examine witnesses. At the conclusion of the hearing, the judge will determine whether the party has an adverse interest and lacks standing in the guardianship proceeding. If the court finds that a party lacks standing, that party’s pleadings should be stricken. See Allison, 819 S.W.2d at 627.
Appeal: A finding that a party lacks standing constitutes a final judgment and may be appealed. See Fischer v. Williams, 331 S.W.2d 210, 213–14 (Tex. 1960); A&W Industries v. Day, 977 S.W.2d 738, 740 (Tex. App.—Fort Worth 1998, no pet.) (citing Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)); see also Womble, 331 S.W.2d at 297 (holding that dismissal of probate action because party is not interested party is “in no sense . . . interlocutory” but is final judgment). Thus, the party found to lack standing should file a motion for new trial or notice of appeal within thirty days from the date of the trial court’s ruling. Tex. R. Civ. P. 329b(a); Tex. R. App. P. 26.1.
On appeal, the appellate court will review the correctness of the trial court’s conclusions of law as drawn from the facts. See A&W Industries, 977 S.W.2d at 741 (citing Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.), overruled on other grounds by Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 894 (Tex. 1991)). “The trial court’s conclusions of law are reviewable de novo as a question of law, and will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence.” A&W Industries, 977 S.W.2d at 741 (citing Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.)).
A person found to lack standing to file an application for guardianship or a contest to an application for guardianship is not entitled to recover attorney’s fees, even if the court finds that the application or contest was filed in good faith and with just cause. See In re Guardianship of Bernsen, No. 13-17-00076-CV, 2018 WL 2355198 (Tex. App.—Corpus Christi–Edinburg May 10, 2018, no pet.).
Certain individuals are “disqualified” to serve as a guardian. Tex. Est. Code §§ 1104.351–.358. Although an adverse interest affects a party’s standing in a guardianship proceeding, disqualification generally only prohibits the disqualified party’s ability to be appointed. It does not automatically exclude the disqualified party from participating in the guardianship proceeding.
Texas Estates Code sections 1104.351 through 1104.358 prohibit the following types of persons from being appointed guardian.
Minors: A minor is disqualified from serving as a guardian. Tex. Est. Code § 1104.351(1).
Notoriously Bad Persons: A person whose conduct is “notoriously bad” is disqualified from serving as a guardian. Tex. Est. Code § 1104.353. A notoriously bad person may be one convicted of child or spousal abuse, a spouse who had abandoned his mate, or a person who has shown indifference, neglect, or cruelty toward the proposed ward. See Legler v. Legler, 37 S.W.2d 284 (Tex. App.—Austin 1931, no writ) (husband disqualified because he abandoned wife for ten years); see also Tex. Est. Code § 1104.358. A determination of what constitutes notoriously bad conduct will generally be an issue of fact.
It is presumed not to be in the best interest of a ward or incapacitated person to appoint a person as guardian who has been finally convicted of—
1.any sexual offense, including sexual assault, aggravated sexual assault, and prohibited sexual conduct;
2.aggravated assault;
3.injury to a child, elderly individual, or disabled individual;
4.abandoning or endangering a child;
5.terroristic threat; or
6.continuous violence against the family of the ward or incapacitated person.
Incapacitated Persons: An incapacitated person is disqualified from serving as a guardian. Tex. Est. Code § 1104.351(1).
Parties to Lawsuit Involving Proposed Ward: An individual who is a party to a lawsuit or whose parents are parties to a lawsuit affecting the proposed ward’s welfare is disqualified to be appointed a guardian unless the court determines that the applicant’s and the proposed ward’s interests do not conflict or the court appoints a guardian ad litem to represent the proposed ward throughout the litigation. Tex. Est. Code § 1104.354(1); see also Mireles v. Alvarez, 789 S.W.2d 947 (Tex. App.—San Antonio 1990, writ denied) (husband disqualified from serving as wife’s guardian because they were coplaintiffs in lawsuit).
Persons Indebted to Proposed Ward: A person who is indebted to the proposed ward is disqualified from serving as guardian. Tex. Est. Code § 1104.354(2). This is a common ground for disqualification. The debt may be evidenced by written instrument or other evidence. The debtor may remove this disqualification by repaying the debt before his appointment. Tex. Est. Code § 1104.354(2).
Persons Asserting Claim Adverse to Proposed Ward: A person asserting a claim adverse to the proposed ward or the guardianship estate is disqualified from serving as guardian. Tex. Est. Code § 1104.354(3). This is another common ground for disqualification. See section 10.5:1 above for a more detailed discussion.
Incapable Persons: A person who, due to lack of education, experience, or otherwise, is incapable of managing and controlling the proposed ward’s person or estate is disqualified from serving as guardian. Tex. Est. Code § 1104.351(2); see also Trimble v. Texas Department of Protective & Regulatory Service, 981 S.W.2d 211, 216 (Tex. App.—Houston [14th Dist.] 1998, no pet.). “Incapable” has been defined as “lacking capacity, ability, or qualifications for the purpose or end in view.” In re Guardianship of Allen, No. 12-14-00249-CV, 2015 WL 7280894, at *2 (Tex. App.—Tyler Nov. 18, 2015, no pet.). An individual will not be automatically disqualified simply because he lacks knowledge of guardianship law or does not have a business degree. Blackburn v. Gantt, 561 S.W.2d 269, 273 (Tex. App.—Houston [1st Dist.] 1978, no writ). Rather, the court will consider the experience of the applicant in light of the issues that may be involved in administering the proposed ward’s estate. Thus, an individual may be incapable of serving as guardian because of the particularities of the proposed ward’s estate. See Blackburn, 561 S.W.2d at 273 (bank, instead of son, appointed guardian to administer ward’s considerable estate).
Nonresidents Who Fail to Designate Resident Agents: A nonresident of Texas may not be appointed as a guardian in Texas unless he has filed a designation of resident agent in the guardianship proceeding. Tex. Est. Code § 1104.357. If an applicant is a nonresident of Texas, the application for guardianship and a designation of resident agent should be filed contemporaneously, if possible, but certainly by or before the hearing to appoint a guardian.
Unsuitable Persons: The court may find that a person, corporation, or institution is “unsuitable” and thus disqualified to be appointed guardian. Tex. Est. Code § 1104.352.
Persons Subject to Protective Order for Family Violence: A person found to have committed family violence who is subject to a protective order under chapter 85 of the Texas Family Code may not be appointed guardian of a ward or proposed ward protected by the order. Tex. Est. Code § 1104.358.
Such a determination is subject to review for abuse of discretion. Although the trial court’s discretion is generally upheld, a rare exception was found in a decedent’s estate case in In re Estate of Gay, 309 S.W.3d 676 (Tex. App.—Houston [14th Dist.] 2010, no pet.), in which the reviewing court held the probate court abused its discretion and acted without reference to guiding rules and principles by refusing to appoint brothers as administrators of their father’s estate because the trial judge found they had misrepresented themselves before a federal tribunal as their deceased father’s “personal representatives by testamentary designation” when, in fact, they had not been appointed by a court as their father’s personal representatives.
Persons Disqualified by Declaration: A person may be disqualified to be appointed guardian if the proposed ward executed a written declaration under Code section 1104.202(b) that specifically disqualifies the individual. Tex. Est. Code § 1104.355.
Persons Not Certified to Serve: A person may not be appointed guardian who does not have the certification required by Estates Code chapter 1104, subchapter F. Tex. Est. Code § 1104.356.
§ 10.5:4Raising Issue of Disqualification
If a potentially ineligible person seeks to be appointed guardian, it is preferable to file a contest to the application specifying the basis for disqualification. If the court characterizes the grounds for disqualification as “adverse interest” under section 1055.001 of the Texas Estates Code, it may then find that the party lacks standing and strike that party’s pleadings. See section 10.5:1 above.
§ 10.6:1Physician’s Certificate of Medical Examination (CME)
Generally, the statement of the doctor who examined the proposed ward will be the only medical evidence of incapacity during the process of initiating a guardianship. As a result, a certificate of medical examination (CME) is an extremely important document in the course of the application process. No guardianship of an adult incapacitated person may be granted without a CME that complies with Texas Estates Code section 1101.103. It is advisable to obtain the CME before filing the guardianship application. This allows the attorney to sign the pleading with a good-faith belief that the application is not groundless or frivolous. See Tex. R. Civ. P. 13. This is also usually the single most important factor affecting how quickly the guardianship hearing may be set.
Because Estates Code section 1101.103 requires that a CME be presented to the court and that it be considered by the court before ruling on the application for guardianship, the Amarillo court of appeals held in In re Guardianship of Parker, 275 S.W.3d 623 (Tex. App.—Amarillo 2008, no pet.), that the CME is not subject to evidentiary objections.
§ 10.6:2Incapacitated Proposed Ward
No guardianship of an adult incapacitated person may be granted without a certificate of medical examination (CME). The CME must comply with Tex. Est. Code § 1101.103, which specifically sets out the requirements of the report that are necessary for the court to have before it before it can legally grant a guardianship. Only physicians may complete a CME. Tex. Est. Code § 1101.103(a). The certificate must be based on an examination conducted within 120 days before the application is filed and dated within that same 120-day time period. See In re Guardianship of Hoffpauir, No. 09-16-00152-CV, 2018 WL 1321509, at *10 (Tex. App.—Beaumont Mar. 15, 2018, pet. filed) (confirming that CME must be dated not earlier than 120th day before application is filed, not within six months of hearing or trial). See section 10.6:3 below for a discussion of determination of intellectual disability. Specific requirements for the contents of the CME are discussed in Texas Estates Code section 1101.103.
The CME must—
(1)describe the nature, degree, and severity of the proposed ward’s incapacity, including any functional deficits regarding the proposed ward’s ability to:
(A)handle business and managerial matters;
(B)manage financial matters;
(C)operate a motor vehicle;
(D)make personal decisions regarding residence, voting, and marriage; and
(E)consent to medical, dental, psychological, or psychiatric treatment;
(2)in providing a description under Subdivision (1) regarding the proposed ward’s ability to operate a motor vehicle and make personal decisions regarding voting, state whether in the physician’s opinion the proposed ward:
(A)has the mental capacity to vote in a public election; and
(B)has the ability to safely operate a motor vehicle;
(3)provide an evaluation of the proposed ward’s physical condition and mental functioning and summarize the proposed ward’s medical history if reasonably available;
(3–a) in providing an evaluation under Subdivision (3), state whether improvement in the proposed ward’s physical condition and mental functioning is possible and, if so, state the period after which the proposed ward should be reevaluated to determine whether a guardianship continues to be necessary;
(4)state how or in what manner the proposed ward’s ability to make or communicate responsible decisions concerning himself or herself is affected by the proposed ward’s physical or mental health, including the proposed ward’s ability to:
(A)understand or communicate;
(B)recognize familiar objects and individuals;
(C)solve problems;
(D)reason logically; and
(E)administer to daily life activities with and without supports and services;
(5)state whether any current medication affects the proposed ward’s demeanor or the proposed ward’s ability to participate fully in a court proceeding;
(6)describe the precise physical and mental conditions underlying a diagnosis of a mental disability, and state whether the proposed ward would benefit from supports and services that would allow the individual to live in the least restrictive setting;
(6–a) state whether a guardianship is necessary for the proposed ward and, if so, whether specific powers or duties of the guardian should be limited if the proposed ward receives supports and services; and
(7)include any other information required by the court.
§ 10.6:3Intellectually Disabled Potential Ward
If the proposed ward is intellectually disabled (formerly referred to as “mentally retarded”), the certificate of medical examination (CME) alone will not be sufficient to appoint a guardian. Instead, the application must also include documentation regarding intellectual disability. Tex. Est. Code § 1101.104. Either a physician or a psychologist may complete a “determination of intellectual disability” (DID) under Tex. Est. Code § 1101.104.
Rather than having a 120-day time frame, the DID must be based on an examination performed within the twenty-four months preceding the hearing. Tex. Est. Code § 1101.104(2)(A). It is not unusual to encounter an intellectually disabled patient who has not been examined in some years, particularly if his physical health is stable.
Frequently, when no DID has been performed within the last two years, courts will allow the doctor or psychologist to review the most recent (but now out-of-date) DID and certify that it is still accurate and complete.
If the proposed ward is “dually diagnosed,” that is, has an intellectual disability diagnosis but also a medical diagnosis (e.g., autism, static encephalopathy), a DID is not required, and the regular CME may be used.
Physicians are authorized to perform DIDs and combine the CME with a DID. A traditional DID may also still be submitted. See Tex. Est. Code § 1101.104.
A standard form of CME (which includes a DID) is included as form 4-9 in this manual.
§ 10.6:4Independent Medical Examination
If the proposed ward is uncooperative, the applicant cannot obtain proper consent to waive the patient-physician privilege, the applicant cannot gain access to the proposed ward, or the ad litems or a contestant want a “second opinion,” the court may order an independent medical exam and appoint the necessary physicians. If an independent medical examination is sought, an application should be filed with the court setting out the requested scope of the examination and any requested limitations. The proposed ward and attorney ad litem must receive notice at least four days before the hearing. Tex. Est. Code § 1101.103(c). Service of the notice of hearing should be accomplished in the same manner as service of an application for guardianship. Although Texas Estates Code section 1101.103(c) requires four days’ notice, this requirement may be waived. See forms 10-6 and 10-7 in this chapter. A court abuses its discretion if it appoints a physician to perform an examination of a proposed ward without the necessity therefor being determined “at a hearing held for that purpose” after notice to the proposed ward and the attorney ad litem. See In re Kelm, 569 S.W.3d 232, 236 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Note that even though section 1101.103 specifically refers to physicians, courts have discretion to appoint a physician and, when appropriate, order additional testing. For example, a psychiatrist may require neuropsychological testing to render a complete report. Thus, consideration should be given to any tests that may need to be ordered to obtain a complete independent evaluation.
§ 10.7Privileges and Exceptions
§ 10.7:1Physician-Patient Privilege
General Rule: Communications between an individual and his physician are privileged and may not be disclosed by the physician. Tex. R. Evid. 509(c)(1). Further, a patient’s medical records are confidential and may not be disclosed. Tex. R. Evid. 509(c)(2).
Waiver of Privilege: The patient or any repre-sentative of the patient may consent to the release of privileged information. Tex. R. Evid. 509(e)(2). An authorized representative may include the patient’s guardian or attorney ad litem in the guardianship hearing. Tex. R. Evid. 509(f)(1).
§ 10.7:2Mental-Health Privilege
General Rule: All communications, including all records, between an individual and his physician or another professional related to the patient’s mental health are privileged. Tex. R. Evid. 510(b). Further, section 576.005 of the Texas Health and Safety Code provides that “[r]ecords of a mental health facility that directly or indirectly identify a present, former, or proposed patient are confidential unless disclosure is permitted by other state law.” See Tex. Health & Safety Code § 576.005.
Disclosure of Name and Birth and Death Dates: A mental-health facility must release the name, date of birth, or date of death of a person who was a patient at the facility on request by a representative of a cemetery or funeral establishment only for the purpose of inscribing the name or date on a grave marker, unless otherwise instructed by the patient or the patient’s guardian. Tex. Health & Safety Code § 576.0055.
Waiver of Privilege: The patient or any repre-sentative of the patient may consent to the release of privileged information by signing a written consent. Tex. R. Evid. 510(d)(2). An authorized representative includes any person bearing the written consent of the patient and the patient’s guardian. Tex. R. Evid. 510(a)(3).
§ 10.7:3Exceptions to Privilege
Guardianship “Miranda” Warning: Texas Rule of Evidence 510(d)(4) allows physicians and other mental-health professionals to disclose information concerning the proposed ward’s mental or emotional health obtained in the course of a court-ordered examination provided the professional previously informed the proposed ward that their communications would not be privileged. See Tex. R. Evid. 510(d)(4). For the exception to apply, the judge must find that the patient was told that the information would not be privileged before communicating with the physician. Tex. R. Evid. 510(d)(4).
This exception is specifically addressed in the certificate of medical examination (CME). When using a physician or other health-care professional to evaluate a proposed ward who may not be well versed in the CME form, it is worth informing the physician or other health-care professional of the importance of informing the proposed ward of this exception to privilege.
Failure to Give Guardianship “Miranda” Warning: If a medical doctor or expert fails to give the required disclosure, the expert’s entire testimony generally will be excluded as privileged. Accordingly, experts should be warned about these requirements before evaluating the proposed ward. Furthermore, the physician’s letter, certificate, or medical report should include a statement confirming that the expert gave the proposed ward the required disclosure and, if possible, that the proposed ward consented to the release of information in writing.
If the physician failed to give the proper warning, the temporary guardian of the person or an acting agent-in-fact could also consent to the disclosure of mental-health information under rule 510(b) of the Texas Rules of Evidence. See section 10.7:2 above.
When contesting medical testimony, the attorney should take the opposing witness on voir dire before the direct examination to determine if the disclosure was made and the privilege was waived. If not, the attorney should move to strike further testimony of the witness.
§ 10.8:1Testifying Medical Expert
Selecting Qualified Experts: Hiring a psychiatrist or neurologist who has experience determining and testifying about capacity in guardianship proceedings is of great importance, as he will be familiar with the legal criteria for establishing capacity. The expert should be board certified, if possible. Most judges will hesitate to grant an application for guardianship with no medical testimony. Possible alternatives to physicians as experts include social workers, nurses, and medical or home-care attendants.
Qualifying Experts: Rule 702 of the Texas Rules of Evidence, which governs testifying experts, provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702.
Daubert Standard: The United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), adopted a new standard relating to the admissibility of expert testimony. The Texas Supreme Court subsequently adopted the holding of Daubert in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). This rule now applies to all experts. See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
In Daubert, the Supreme Court held that rule 702 of the Federal Rules of Evidence requires scientific expert testimony to be both reliable and relevant. Daubert, 509 U.S. at 589. The trial court granted a motion for summary judgment because the plaintiffs failed to establish that the opinions of their experts were generally accepted by the relevant scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F. Supp. 570, 572 (S.D. Cal. 1989) (quoting United States v. Kilgus, 571 F.2d 508, 510 (9th Cir. 1978)). The court of appeals followed the “general acceptance test” established in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), and affirmed the lower court’s ruling. Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128 (9th Cir. 1991).
On appeal, the Supreme Court held that rule 702 did not incorporate the Frye test, noting that Frye’s restrictive “general acceptance” test was at odds with the liberal approach of the Federal Rules of Evidence. Daubert, 509 U.S. at 588 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)). Rather, rule 702 requires the proffered testimony to be (1) scientific knowledge (2) that will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 589 (quoting Fed. R. Evid. 702). To constitute “scientific knowledge,” the proffered testimony must be reliable. Daubert, 509 U.S. at 590. In addition, to be helpful to the trier of fact, the evidence must be relevant. Daubert, 509 U.S. at 591. Scientific evidence is relevant if there is a “valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Daubert, 509 U.S. at 592. The Court further enumerated four nonexclusive factors to assist trial judges in determining whether scientific evidence is relevant and reliable and therefore admissible under rule 702. They are—
1.whether a theory or technique can be and has been tested (falsifiability);
2.whether the theory or technique has been subjected to peer review and publication;
3.the technique’s known or potential rate of error and the standards controlling the technique’s operation; and
4.the general acceptance of the theory or technique by the relevant scientific community.
Daubert, 509 U.S. at 591–94.
Texas Adopts Daubert Rule in Robinson: In 1995, the Texas Supreme Court adopted the Daubert holding in E.I. du Pont de Nemours & Co. v. Robinson by finding that rule 702 of the Texas Rules of Evidence also requires a proponent of scientific expert testimony to demonstrate that such evidence is relevant and reliable before it can be admitted. Robinson, 923 S.W.2d at 556. Once an expert’s qualifications are established, the proponent of the testimony must then demonstrate that the evidence is relevant and reliable before the testimony can be admitted. See Daubert, 509 U.S. at 579; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998).
By applying these tests to opinions proffered by a party, the trial court is mandated to assume the role of a “gatekeeper.” However, the trial court need not determine “whether an expert’s conclusions are correct, but only whether the analysis used to reach them is reliable.” Gammill, 972 S.W.2d at 728. The trial court retains discretion in determining the admissibility of expert testimony, and the standard on appeal is an abuse of that discretion. Gammill, 972 S.W.2d at 719.
Extension of Daubert and Robinson to All Experts: For several years following the Daubert and Robinson decisions, it was unclear whether their holdings applied only to “hard sciences” such as testing, research, and analysis or were intended to extend to clinical sciences. The United States Supreme Court clarified this issue in Kumho Tire Co. v. Carmichael, which held that the trial court’s Daubert gatekeeper obligation applied to all expert testimony. Kumho Tire Co., 526 U.S. at 147–149; see also Gammill, 972 S.W.2d at 713.
Effect on Guardianship Proceedings: Because medical testimony is a fundamental requirement in a guardianship proceeding, special consideration should be given to the selection of medical experts to examine a proposed ward for purposes of providing medical expert testimony. It is preferable to select doctors with experience and training in psychology or neurology, if possible. Geriatric psychiatrists and neurologists make good witnesses as they are able to testify to commonly used psychiatric tests in their area of specialization.
The failure to select a medical expert with specialized training and knowledge could result in the exclusion of the expert’s testimony. For example, the Texas Supreme Court affirmed the exclusion of an emergency room doctor’s testimony offered to establish the relationship between a patient’s head injury and death. Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). In reaching its decision, the court noted that a neurologist was better suited to opine on such matters. Broders, 924 S.W.2d at 153. The court also noted that medical experts are not automatically qualified simply because they possess a medical degree. Rather, the offering party must show that “the expert has ‘knowledge, skill, experience, training or education’ regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Broders, 924 S.W.2d at 153 (citing Ponder v. Texarkana Memorial Hospital, 840 S.W.2d 476, 477–78 (Tex. App.—Houston [14th Dist.] 1991, writ denied)).
The attorney should be prepared to question the opposing party’s expert. See form 10-16 in this chapter for a list of sample questions for the physician witness in a contested guardianship proceeding. These questions do not form an exhaustive list.
Nevertheless, under In re Guardianship of Parker, 275 S.W.3d 623, 628–29 (Tex. App.—Amarillo 2008, no pet.), because Tex. Est. Code § 1101.103 (formerly Texas Probate Code section 687) requires that the certificate of medical examination (CME) be presented to the court and that it be considered by the court before ruling on the application for guardianship, the court held that the CME is not subject to evidentiary objections.
§ 10.8:2Testifying Nonexpert Witness
In jury trials, lay witnesses who are personally acquainted with the proposed ward are among the most influential. Lay witnesses may testify about the proposed ward’s actions, conduct, and demeanor. Juries often give more credence to their testimony than to that of expert witnesses whom the jury may believe have something to gain or lose.
If a nonexpert gives an opinion about mental capacity, the witness must state facts on which his opinion is based. Ellington v. Ellington, 443 S.W.2d 50, 53 (Tex. App.—Tyler 1969, writ ref’d n.r.e.). If the witness states that he believes the proposed ward is of unsound mind, he must divulge detailed facts on which he bases his conclusion. Conversely, if he concludes the proposed ward is of sound mind, very little detail may be necessary. See Williford v. Masten, 521 S.W.2d 878, 885 (Tex. App.—Amarillo 1975, writ ref’d n.r.e.); Moeling v. Russell, 483 S.W.2d 21, 23 (Tex. App.—Tyler 1972, no writ).
Potential witnesses may include a religious adviser; friends, acquaintances, or members of the proposed ward’s social groups; or any person who has had business dealings with the proposed ward such as a housekeeper, a banker, an accountant, a hairdresser, or a veterinarian.
§ 10.8:3Court Investigator’s Report
On the filing of an application for guardianship under Texas Estates Code section 1101.001, a court investigator investigates the circumstances alleged in order to determine whether a less restrictive alternative is appropriate. Tex. Est. Code § 1054.151. The court investigator’s role does not supersede any statutory duty or obligation of another to report or investigate abuse or neglect. Tex. Est. Code § 1054.154.
The investigator must file a report on his findings. Tex. Est. Code § 1054.153(a). In contested cases, the investigator must furnish the attorneys with a copy of his report by the earlier of seven days after the day it is completed or ten days before the day the trial is scheduled to begin. Tex. Est. Code § 1054.153(b). Most court investigators appreciate receiving relevant telephone numbers and contact addresses from the applicant to assist in their investigation. While the report should include facts and findings, the investigator should take care not to advocate for a particular outcome or in favor of a particular party. Doing so could at a minimum disqualify the investigator and at worse invite a motion to recuse the judge, since the investigator is an arm of the court.
§ 10.8:4Confidentiality of State and County Agency Reports
General Rule: Agencies such as the Texas Department of Family and Protective Services may have information relevant to an applicant’s eligibility to serve or contest a guardianship proceeding. There are, however, confidentiality requirements with respect to the records of state and county agencies. The Texas Human Resources Code deems confidential and not subject to disclosure—
1.a report of abuse, neglect, or exploitation;
2.the identity of the person making a report; and
3.all files, reports, records, communications, and working papers used or developed in an investigation relating to services provided under Code chapter 48.
Tex. Hum. Res. Code § 48.101(a).
Exception: A court, including a court in which a guardianship is pending, may direct the release of confidential information if it determines that the disclosure is essential to the administration of justice and will not endanger the life or safety of any individual who is the subject of, makes, or participates in a report of abuse, neglect, or exploitation. Tex. Hum. Res. Code § 48.101(c)(3); see also In re Chesses, 388 S.W.3d 330 (Tex. App.—El Paso 2012, no pet.).
The party seeking disclosure of a report must prepare and file a motion with the court requesting its release and a hearing on the motion. Tex. Hum. Res. Code § 48.101(c)(1). The movant must give the department or investigating state agency and each interested party notice of the motion and hearing. Tex. Hum. Res. Code § 48.101(c)(2). The court must hold a hearing and conduct an in camera review of the information before determining whether to direct the release of the report. Tex. Hum. Res. Code § 48.101(c)(3).
The notice and filing requirements delay procurement of the agency reports by several weeks. Accordingly, the application for their disclosure should be filed before the guardianship hearing to ensure sufficient time exists to receive and review them. See forms 10-8 and 10-9 in this chapter.
Discovery is an effective tool for determining another party’s motivations in seeking or contesting a guardianship. It also allows the attorney to ascertain whether that party has an adverse interest that would disqualify the applicant from seeking or contesting the guardianship.
A party should promptly send a request for disclosure and follow up with other discovery appropriate for the allegations in the proceedings. Discovery should be used to investigate a party’s standing, any adverse interests, any disqualifications, and opposition to another party’s entitlement or qualifications. If defending against a guardianship, the attorney should attempt to determine whether the proponent has recently engaged in personal or business transactions that tacitly admit that the proposed ward has capacity. Such transactions may include accepting a check signed by the proposed ward or acting under a power of attorney recently executed by the proposed ward.
Finally, if any party is actively asserting that the proposed ward has capacity, the proposed ward should be deposed so that the attorney will be aware of the proposed ward’s probable testimony. See forms 10-11 through 10-15 in this chapter.
Required Disclosures: Amendments to Texas Rules of Civil Procedure 194.1–194.6, effective January 1, 2021, require disclosures and production of documents to be made to opposing parties without waiting for a discovery request “except as exempted by [the Rules] or as otherwise agreed by the parties or ordered by the court.” Tex. R. Civ. P. 194.1 (emphasis added).
While these rules make specific reference to suits governed by the Texas Family Code and rule 194.2(d) includes specific exemptions from the provisions for certain types of cases, no specific exemptions or references are made for probate and guardianship proceedings.
Probate and guardianship proceedings are exempt from the “Expedited Trial Rules” (Tex. R. Civ. P. 47(c), 169) under Texas Estates Code sections 53.107 and 1053.105. See Tex. Est. Code §§ 53.107, 1053.105. In the absence of a clear indication whether these Estates Code sections similarly shelter probate and guardianship proceedings from the initial disclosure requirements under rule 194, the duty may be avoided either by a Rule 11 Agreement between the parties or by court order. See Tex. R. Civ. P. 194.1(a).
See form 6-5 in this manual for a suggested Rule 11 Agreement.
However, in an applicable case, required disclosures apply to initial, expert, and pretrial disclosures. Initial disclosures are due thirty days after the contestant’s answer. Expert disclosures are due ninety days before trial for the movant and sixty days before trial for the contestant. Pretrial disclosures must be made at least thirty days before trial. Tex. R. Civ. P. 194, 195.
§ 10.9Considerations During Hearing and Trial
The burden of proof in a contested guardianship is on the person alleging the incapacity. In other words, the applicant will be required to prove all the statutory elements necessary for the court to appoint a guardian. Tex. Est. Code § 1101.101(b).
§ 10.9:2Findings Required by Trier of Fact
Note that in all guardianship proceedings, two standards of proof are employed: both clear and convincing and preponderance of evidence. Section 1101.101 of the Texas Estates Code lists the requisite findings and the applicable standards.
Clear and Convincing Evidence: Before appointing a guardian, the finder of fact must find by clear and convincing evidence that—
1.the proposed ward is incapacitated (the incapacity of an adult proposed ward must be evidenced by recurring acts within the preceding six months and not by isolated instances of negligence or bad judgment);
2.it is in the best interest of the proposed ward to have the court appoint a person as the proposed ward’s guardian;
3.the proposed ward’s rights or property will be protected by the appointment of a guardian;
4.alternatives to guardianship that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible; and
5.supports and services available to the proposed ward that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible.
Tex. Est. Code § 1101.101(a)(1).
Clear and convincing evidence means “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Trimble v. Texas Department of Protective & Regulatory Service, 981 S.W.2d 211, 217 (Tex. App.—Houston [14th Dist.] 1998, no pet.). This standard falls between the preponderance-of-evidence standard in civil proceedings and the reasonable-doubt standard in criminal proceedings. Trimble, 981 S.W.2d at 217. For example, to avoid a guardianship, there must be clear and convincing evidence that available supports and services would enable the proposed ward to make personal decisions on his own, not that supports and services would enable another person to make those same decisions for the proposed ward. In re Guardianship of A.E., 552 S.W.3d 873 (Tex. App.—Fort Worth 2018, no pet.).
Preponderance of Evidence: Before appointing a guardian, the finder of fact must find by a preponderance of the evidence that—
1.the court has venue of the case;
2.the person to be appointed guardian is eligible to act as guardian and is entitled to appointment or, if no eligible person entitled to appointment applies, the person appointed is a proper person to act as guardian;
3.if a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which he is not otherwise eligible for enrollment; and
4.the proposed ward is totally without capacity to care for himself and to manage his property or lacks the capacity to do some, but not all, of the tasks necessary to care for himself or to manage his property.
Tex. Est. Code § 1101.101(a)(2).
§ 10.9:3Ward’s Presence in Courtroom
Section 1101.051 of the Texas Estates Code requires the proposed ward’s presence in the courtroom at the hearing; if he does not attend, the court must make a finding on the record of why his presence was not necessary or may enter its determination in the order. Tex. Est. Code § 1101.051(b). Generally, the duty to bring the proposed ward to the courtroom or to explain his nonappearance rests with the attorney ad litem. Several methods may be used to prove why the proposed ward’s presence at the hearing would not be in his best interests. Examples include the following:
•Incorporate into the physician’s letter or certificate the medical reason the proposed ward’s presence would be inappropriate.
•Prepare a written statement by the ad litem for the proposed ward to sign, expressing his desire not to appear.
•Tape record (with the court’s permission) the proposed ward’s statement to the court.
•Arrange for a telephonic appearance if the proposed ward is physically unable to attend and the court will allow it.
•Arrange for the ad litem to testify about the proposed ward’s inability or lack of desire to attend.
§ 10.9:4Hearsay Objection to Physician’s Letter or Certificate
It is generally appropriate to allow hearsay of a medical professional without subjecting the professional to cross-examination if the physician’s testimony is not truly controverted. This commonly occurs if no one objects to the admission of the physician’s letter or certificate. Also, rule 803(4) of the Texas Rules of Evidence provides a hearsay exception for “statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Tex. R. Evid. 803(4); see also In re Guardianship of Parker, 275 S.W.3d 623 (Tex. App.—Amarillo 2008, no pet.). Because Tex. Est. Code § 1101.103 requires that a certificate of medical examination (CME) be presented to the court and that it be considered by the court before ruling on the application for guardianship, the court in Parker held that the CME was not subject to evidentiary objections. See Tex. R. Evid. 803(4).
The “dead man’s statute,” which limits the admissibility of a decedent’s statements under certain circumstances, applies to incapacitated individuals as well. Under this rule of evidence, neither party is allowed to testify against the other about oral statements by the testator, intestate, or ward unless that testimony is corroborated or unless the witness is called at trial to testify by the opposite party. Tex. R. Evid. 601(b).
Most transactions with the proposed ward or ward can be admitted. Tex. R. Evid. 601(b). Additionally, Texas courts follow the modern line of cases from other jurisdictions holding that “corroborating evidence need not be sufficient standing alone to support the verdict, but must tend to confirm and strengthen the testimony of the witness and show the probability of its truth.” Quitta v. Fossati, 808 S.W.2d 636, 641 (Tex. App.—Corpus Christi–Edinburg 1991, writ denied) (citing Powers v. McDaniel, 785 S.W.2d 915, 920–21 (Tex. App.—San Antonio 1990, writ denied)); Parham v. Wilbon, 746 S.W.2d 347, 350 (Tex. App.—Fort Worth 1988, no writ); Bobbitt v. Bass, 713 S.W.2d 217, 220 (Tex. App.—El Paso 1986, writ dism’d)).
When trial is inevitable, a jury charge should be prepared and submitted to the court. See Tex. R. Civ. P. 271–279.
For sample pattern jury charges relating to guardianship proceedings, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family & Probate.
Reasonable and necessary attorney’s fees may be charged against the ward’s estate or, if the estate is insufficient, from the county treasury if the county budgets funds for that purpose under section 1155.054 of the Texas Estates Code. See Nelkin v. Panzer, 833 S.W.2d 267, 269 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.) (citing former Texas Probate Code section 247); see also Tex. Est. Code § 1155.054.
A private attorney who defends the proposed ward in the guardianship proceeding may also seek payment of attorney’s fees and expenses from the ward’s estate. However, if the court ultimately finds that the proposed ward is incapacitated and, therefore, incapable of entering into a contract, the private attorney may be denied recovery of attorney’s fees on the grounds that the proposed ward did not have capacity to retain counsel.
If the court finds that a party in a guardianship proceeding acted in bad faith or without just cause in prosecuting or objecting to an application in the proceeding, the court may order the party to reimburse the ward’s estate for all or part of the attorney’s fees awarded under Texas Estates Code section 1155.054 and shall issue judgment against the party and in favor of the ward’s estate for the amount of attorney’s fees ordered to be reimbursed to the ward’s estate. See Tex. Est. Code § 1155.054(d).
Because attorney’s fees are not classically considered “costs,” such amounts are not to be included in calculating the “probable costs” for ruling for security for costs under Tex. Est. Code § 1053.052. See sections 10.4:2 through 10.4:6 above.
Amendments in 2021 to the Texas Civil Practice and Remedies Code broaden the category of parties from whom attorney’s fees can be recovered. Fees may now be recovered in civil actions from any individual or “organization” (defined by Texas Business Organizations Code section 1.002(62)) other than a quasi-governmental entity authorized to perform its function by state law, a religious organization, a charitable organization, or a charitable trust. Tex. Civ. Prac. & Rem. Code § 38.001.
§ 10.10:1Requesting Attorney’s Fees
It is advisable to include a plea of good faith and just cause in the application to appoint a guardian. This plea lays the foundation for, and the finding is a condition precedent to, an award of attorney’s fees from the ward’s estate. See form 10-1 in this chapter for suggested language.
“Good faith” and “just cause” are not defined by the Texas Estates Code, and no Texas case has defined these terms in the context of a discretionary award of attorney’s fees to a party who filed an application for appointment of a guardian. However, the Estates Code includes a similar attorney’s fees provision regarding the probate of a will. See Tex. Est. Code § 352.052(a) (awarding attorney’s fees from the estate to a person designated as executor or administrator who defends or prosecutes a proceeding to have the will admitted to probate and acts in “good faith and with just cause”). In this context, “good faith” means an “action prompted by honesty of intention or a reasonable belief that the action was probably correct.” In re Estate of Kam, 484 S.W.3d 642, 654 (Tex. App.—El Paso 2016, pet. denied) (quoting Ray v. McFarland, 97 S.W.3d 728, 730 (Tex. App.—Fort Worth 2003, no pet.)). A party acts “for just cause” when his actions are “based on reasonable grounds and there [is] a fair and honest” reason for his actions. In re Estate of Kam, 484 S.W.3d at 654–55 (quoting Ray, 97 S.W.3d at 730).
If the request for attorney’s fees is not contested, it may be submitted as an application for payment of attorney’s fees or by filing a claim. The application should be in writing, showing each item of expense and the date of the expense, including a description of the legal services provided; verified by an affidavit of the guardian or applicant; and filed with the clerk of the court to comply with section 1155.103 of the Estates Code regarding expenses against the guardianship estate. The payment also must be authorized by court order before payment can be made from the ward’s estate. See Tex. Est. Code § 1155.103; see also Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000, pet. denied).
The timing of the request for attorney’s fees is important. At least one court of appeals has held that the court that creates the guardianship is in the best position to evaluate the request for fees. In In re Estate of Larson, which involved a contested guardianship, the attorneys who represented the ward’s spouse failed to file an application for fees before the closing of the guardianship. Instead, they waited and filed a claim in the ward’s estate after her death. On appeal from the awarding of those fees in the probate estate, the court of appeals held that only the guardianship court can award fees under the guardianship provisions of the Estates Code. See In re Estate of Larson, 541 S.W.3d 368 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
§ 10.10:2Evidentiary Requirements
Generally, the determination of the reasonableness of attorney’s fees is a question of fact, and the fee award must be supported by competent evidence. In re Guardianship of Hanker, No 01-12-00507-CV, 2013 WL 3233251 (Tex. App.—Houston [1st Dist.] June 25, 2013, no pet.); Brown & Root U.S.A., Inc. v. Trevino, 802 S.W.2d 13, 14–15 (Tex. App.—El Paso 1990, no writ) (citing Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex. 1966)). When determining the amount of fees to award, the court should consider the attorney’s hourly rate and the hours expended. See Central Texas Micrographics v. Leal, 908 S.W.2d 292, 299 (Tex. App.—San Antonio 1995, no writ); Hanker, 2013 WL 3233251, at *3–5. Expert testimony concerning the reasonableness and necessity of the legal services performed can be used to support the award. Barrett v. Parchman, 675 S.W.2d 289, 291 (Tex. App.—Dallas 1984, no writ); Hanker, 2013 WL 3233251, at *3; see also Tex. Disciplinary Rules Prof’l Conduct R. 1.04, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).
Texas appellate courts have held that the trial court does not have authority to adjudicate the reasonableness of attorney’s fees on judicial knowledge without the benefit of evidence. Brown & Root U.S.A., Inc., 802 S.W.2d at 15. If no evidence or insufficient evidence supports an award, the court abuses its discretion in making the award and the case must be reversed. Brown & Root U.S.A., Inc., 802 S.W.2d at 16; Hanker, 2013 WL 3233251, at *2, 3. For additional guidance on the determination of reasonable and necessary evidence and the lodestar method for calculating fees, see sections 10.10:3 through 10.10:11 below.
§ 10.10:3Reasonable and Necessary
As a general rule, the party seeking to recover attorney’s fees carries the burden of proof, and reasonableness of the fee is a fact question. See, e.g., Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010, pet. denied).
§ 10.10:4Authorization to Recover Attorney’s Fees; Fee-Shifting
Texas law does not generally permit recovery of attorney’s fees unless authorized by statute or contract; this rule is known as “the American Rule.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006); Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009); In re Marriage of Pyrtle, 433 S.W.3d 152, 160 (Tex. App.—Dallas 2014, pet. denied).
Attorney’s fees are specifically authorized by statute in many circumstances encountered by those practicing in the guardianship area. For a list of statutes allowing or related to the recovery of attorney’s fees in guardianship proceedings, see section 10.10:11 below.
When a claimant for fees seeks payment of fees from other than his retained client, typically pursuant to contract or statute, this is often referred to as “fee-shifting.” Transcontinental Insurance Co. v. Crump, 330 S.W.3d 211, 230 (Tex. 2010); Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484 (Tex. 2019).
When a claimant wishes to obtain attorney’s fees from the opposing party, the claimant must prove that the requested fees are both reasonable and necessary. Rohrmoos Venture, 578 S.W.3d at 484.
The idea behind awarding attorney’s fees in fee-shifting situations is to compensate the prevailing party generally for its reasonable losses resulting from the litigation process. To secure an award of attorney’s fees from an opponent, the prevailing party must prove that (1) recovery of attorney’s fees is legally authorized and (2) the requested attorney’s fees are reasonable and necessary for the legal representation, so that such an award will compensate the prevailing party generally for its losses resulting from the litigation process. Rohrmoos Venture, 578 S.W.3d at 487.
Because such fee awards are compensatory in nature, fee-shifting is not a mechanism to improve a lawyer’s economic situation, and only fees that are reasonable and necessary for the legal representation will be shifted to the nonprevailing party. The fee award may not necessarily be the amount contracted for between the prevailing party and its lawyer, because a client’s agreement to a certain fee arrangement or obligation to pay a particular amount does not necessarily establish that fee as reasonable and necessary. Rohrmoos Venture, 578 S.W.3d at 487–88.
A party must be represented by a lawyer to secure an award of attorney’s fees. This includes a corporation being represented by its own in-house counsel, a law firm being represented by a member of the firm, an attorney representing himself pro se, or a state being represented by its attorney general. Rohrmoos Venture, 578 S.W.3d at 488.
Reasonableness of attorney’s fees must be supported by expert testimony. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 830 (Tex. App.—Dallas 2014, no pet.); Twin City Fire Insurance Co. v. Vega–Garcia, 223 S.W.3d 762, 770–71 (Tex. App.—Dallas 2007, pet. denied). This requirement may be satisfied by sworn testimony from an attorney designated as an expert before testifying. See Woodhaven Partners, 422 S.W.3d at 830. Testimony from a party’s lawyer about that party’s attorney’s fees that “is not contradicted by any other witness and is clear, positive, direct, and free from contradiction” is taken as true as a matter of law. In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.—Dallas 2009, pet. denied).
An affidavit complying with section 18.001 of the Texas Civil Practice and Remedies Code can support an award of attorney’s fees. See Tex. Civ. Prac. & Rem. Code § 18.001. Such an affidavit, stating that the amount charged for a service was reasonable at the time and place that the service was provided and that the service was necessary, must be taken before an officer with authority to administer oaths and must be made by the person who provided the service or the person in charge of records showing the service provided and charge made. Tex. Civ. Prac. & Rem. Code § 18.001(b), (c). Although section 18.001(c)(3) provides that an itemized statement of the service and charge must be included, there is authority that attorney’s fees do not have to be itemized. See Jamshed v. McLane Express, Inc., 449 S.W.3d 871, 884 (Tex. App.—El Paso 2014, no pet.).
The affidavit must be served on each other party by the earlier of (1) ninety days after the date the defendant files an answer; (2) the date the offering party must designate any expert witness under a court order; or (3) the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code § 18.001(d). If services are provided for the first time by a provider after the answer is filed, the affidavit must be served by the earlier of (1) the date the offering party must designate any expert witness under a court order or (2) the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code § 18.001(d–1). When the affidavit is served, notice must be filed with the clerk that the affidavit was served in accordance with section 18.001. Except as provided by the Texas Rules of Evidence, the affidavit is not required to be filed with the clerk before the trial begins. Tex. Civ. Prac. & Rem. Code § 18.001(d–2).
The party opposing a claim in the affidavit must serve a counteraffidavit made by a person “qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.” It must give reasonable notice of the basis on which the serving party intends to controvert the claim at trial, and it may not be used to controvert the causation element of the cause of action. Tex. Civ. Prac. & Rem. Code § 18.001(f).
The counteraffidavit must be served on the party or the party’s attorney by the earlier of (1) 120 days after the date the defendant files its answer; (2) the date the party offering the counteraffidavit must designate expert witnesses under a court order; or (3) the date the party offering the counteraffidavit must designate any expert witness as required by the Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code § 18.001(e). If service of the affidavit was made under section 18.001(d–1), the counteraffidavit must be served by the later of (1) thirty days after the affidavit was served; (2) the date the party offering the counteraffidavit must designate any expert witness under a court order; or (3) the date the party offering the counteraffidavit must designate any expert witness as required by the Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code § 18.001(e–1). When the counteraffidavit is served, written notice must be filed with the clerk that the counteraffidavit was served in accordance with section 18.001. Tex. Civ. Prac. & Rem. Code § 18.001(g).
If continuing services are provided after a relevant deadline, affidavits may be supplemented on or before the sixtieth day before the trial begins, and counteraffidavits may be supplemented on or before the thirtieth day before the trial begins. Tex. Civ. Prac. & Rem. Code § 18.001(h). Deadlines may be altered by agreement of all parties or with leave of court. Tex. Civ. Prac. & Rem. Code § 18.001(i).
An unsworn declaration comporting with section 132.001 of the Civil Practice and Remedies Code may be submitted instead of an affidavit. See Tex. Civ. Prac. & Rem. Code § 132.001.
The lodestar method for proving reasonableness and necessity of attorney’s fees applies to fee-shifting claims under the Texas Estates Code. See Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 607–08 (Tex. 2006); Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). There is a presumption that the base lodestar calculation, when supported by sufficient evidence, reflects the reasonable and necessary attorney’s fees that can be shifted to a nonprevailing party. Land Rover U.K., Ltd., 210 S.W.3d at 607–08; Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 499 (Tex. 2019).
The determination of what constitutes a reasonable attorney’s fee involves two steps. Rohrmoos Venture, 578 S.W.3d at 494. The fact finder’s starting point for calculating an attorney’s fee award is determining the reasonable hours worked multiplied by a reasonable hourly rate, and the fee claimant bears the burden of providing sufficient evidence on both counts. Rohrmoos Venture, 578 S.W.3d at 498. Under the lodestar method, sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services. The fact finder then multiplies the number of such hours by the applicable rate, the product of which is the base fee or lodestar. Rohrmoos Venture, 578 S.W.3d at 498.
The fact finder may then adjust the base lodestar up or down (apply a multiplier), if relevant factors indicate an adjustment is necessary to reach a reasonable fee in the case. Thus, the fact finder must first determine a base lodestar figure based on reasonable hours worked multiplied by a reasonable hourly rate. In a jury trial, the jury should be instructed that the base lodestar figure is presumed to represent reasonable and necessary attorney’s fees, but other considerations may justify an enhancement or reduction to the base lodestar; accordingly, the fact finder must then determine whether evidence of those considerations overcomes the presumption and necessitates an adjustment to reach a reasonable fee. Rohrmoos Venture, 578 S.W.3d at 499.
§ 10.10:7Contemporaneous Billing Records
Contemporaneous billing records are not required to prove that the requested fees are reasonable and necessary, but such billing records are strongly encouraged to prove the reasonableness and necessity of requested fees when those elements are contested. In all but the simplest cases, counsel should introduce detailed billing records into evidence, in addition to counsel’s oral testimony, to support fee requests. Thus, counsel should document its time by using contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed to ensure that a potential award of attorney’s fees can withstand appellate scrutiny. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019).
§ 10.10:8Relevance of Amount Incurred under Fee Contract
Because fee-shifting awards are to be reasonable and necessary for successfully prosecuting or defending against a claim, reasonableness and necessity do not depend solely on the contractual fee arrangement between the prevailing party and its lawyer. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). An amount incurred or contracted for is not conclusive evidence of reasonableness or necessity; the fee claimant still has the burden of establishing reasonableness and necessity. Rohrmoos Venture, 578 S.W.3d at 488.
§ 10.10:9Arthur Andersen Factors
The lodestar method developed as a “short hand version” of the Arthur Andersen factors and was never intended to be a separate test or method for determining reasonableness and necessity of attorney’s fees. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 496 (Tex. 2019); see Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997).
The base lodestar figure accounts for most of the relevant Arthur Andersen considerations, and an enhancement or reduction of the base lodestar figure cannot be based on a consideration that is subsumed in the first step of the lodestar method. See Rohrmoos Venture, 578 S.W.3d at 493. The base lodestar calculation usually includes at least the following considerations from Arthur Andersen: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required to perform the legal service properly; (4) the fee customarily charged in the locality for similar legal services; (5) the amount involved; (6) the experience, reputation, and ability of the lawyer or lawyers performing the services; (7) whether the fee is fixed or contingent on results obtained; (8) the uncertainty of collection before the legal services have been rendered; and (9) results obtained. Rohrmoos Venture, 578 S.W.3d at 500. These Arthur Andersen considerations therefore may not be used to enhance or reduce the base lodestar calculation to the extent that they are already reflected in the reasonable hours worked and reasonable hourly rate. If a fee claimant seeks an enhancement, it must produce specific evidence showing that a higher amount is necessary to achieve a reasonable fee award. Similarly, if a fee opponent seeks a reduction in the fee, that party bears the burden of providing specific evidence to overcome the presumptive reasonableness of a base lodestar figure. Rohrmoos Venture, 578 S.W.3d at 501.
Paralegal fees are not automatically recoverable as a subset of attorney’s fees. For recovery of paralegal fees in connection with the recovery of attorney’s fees, the paralegal must have performed work that has traditionally been done by an attorney. Gill Savings Ass’n v. International Supply Co., 759 S.W.2d 697, 702 (Tex. App.— Dallas 1988, writ denied). In addition, the evidence must establish—
1.that the paralegal is qualified through education, training, or work experience to perform substantive legal work;
2.that the substantive legal work was performed under the direction and supervision of an attorney;
3.the nature of the legal work performed;
4.that the hourly rate charged for the paralegal was reasonable and necessary; and
5.that the number of hours expended by the paralegal were reasonable and necessary.
See El Apple 1, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012).
“Substantive legal work” includes conducting client interviews and maintaining general contact with the client; locating and interviewing witnesses; conducting investigations and statistical and documentary research; drafting documents, correspondence, and pleadings; summarizing depositions, interrogatories, and testimony; and attending executions of wills, real estate closings, depositions, court or administrative hearings, and trials with an attorney. “Substantive legal work” does not include clerical or administrative work. See In re Guardianship of Alford, 596 S.W.3d 352 (Tex. App.—Texarkana 2020, no pet.); State Bar of Texas Paralegal Division, Texas Paralegal Standards, https://txpd.org (follow “Paralegal Definition & Standards” hyperlink under “About” hyperlink).
In Gill Savings, although holding that paralegal fees are includable in an attorney’s fee award under certain conditions, the court found that the testimony and exhibits did not provide any help in determining the qualifications, if any, of the legal assistants, the nature of the work performed, or the hourly rate being charged and held that the evidence was legally insufficient to support the award. Gill Savings, 759 S.W.2d at 705; see also Clary Corp. v. Smith, 949 S.W.2d 452, 469–70 (Tex. App.—Fort Worth 1997, pet. denied) (outlining requirements necessary for recovery and finding evidence legally insufficient for recovery); Moody v. EMC Services, 828 S.W.2d 237, 248 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (outlining requirements necessary for recovery and finding evidence legally insufficient for recovery); Multi-Moto Corp. v. ITT Commercial Finance Corp., 806 S.W.2d 560, 570 (Tex. App.—Dallas 1991, writ denied) (outlining requirements necessary for recovery).
When proving a reasonable attorney’s fee, the lawyer should testify that that the hourly rate charged for the paralegal work was reasonable; testifying simply about the total amount of paralegal fees is not sufficient. See Clary Corp., 949 S.W.2d at 470; see also Moody, 828 S.W.2d at 248 (invoices listing total cost for various services performed by paralegal not sufficient to support award of fees).
§ 10.10:11Statutes and Rules—Attorney’s Fees
The following statutes and rules allow or relate to the recovery of attorney’s fees in guardianship proceedings:
Texas Estates Code:
§ 1052.003 Guardianship Fee Book
§ 1053.053 Exemption for Military Personnel
§ 1053.054 Exemption for Public Safety Personnel
§ 1054.055 Guardian Ad Litem
§ 1151.055 Access to Ward
§ 1155.002 Compensation for Certain Guardians of the Person
§ 1155.003 Compensation for Guardian of the Estate
§ 1155.004 Considerations in Authorizing Compensation
§ 1155.005 Maximum Aggregate Compensation
§ 1155.006 Modification of Unreasonably Low Compensation; Authorization for Payment of Estimated Quarterly Compensation
§ 1155.007 Reduction or Elimination of Estimated Quarterly Compensation
§ 1155.008 Denial of Compensation
§ 1155.052 Dual Compensation
§ 1155.053 Recovery of Property; Contingent Fees
§ 1155.054 Attorney’s Fees for Applicant
§ 1155.101 Reimbursement of Expenses in General
§ 1155.102 Reimbursement of Expenses to Recovery of Property
§ 1155.103 Expense Charges: Requirements
§ 1155.151 Costs in Guardianship Proceedings Generally
§ 1155.152 Removal of Guardian
§ 1155.202 Medicaid Recipients
§ 1157.003 Inclusion of Attorney’s Fees in Claim
§ 1161.203(e) Loan Requirements
§ 1163.104 Guardian of the Person Annual Report, Waiver of Fees
§ 1251.013 Temporary Guardians
§ 1253.152 Unjustifiable Conduct
§ 1302.003 Guardianship Management Trust—Attorney Ad Litem
§ 1353.102 Removal of Community Administrator
§ 1356.001 Sports and Entertainment Contracts for Minors
Texas Civil Practice and Remedies Code:
§ 18.001 Affidavit Concerning Cost and Necessity of Services
§ 37.009 Costs (Declaratory Judgment)
§ 38.001 Recovery of Attorney’s Fees
§ 38.002 Procedure for Recovery of Attorney’s Fees
§ 38.003 Presumption
§ 38.004 Judicial Notice
§ 10.11Alternative Dispute Resolution
It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures. Tex. Civ. Prac. & Rem. Code § 154.002. Nevertheless, unless the parties are willing participants, a court cannot force the disputants to peaceably resolve or negotiate their differences. Hansen v. Sullivan, 886 S.W.2d 467, 469 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding). Mediation is the most common type of alternative dispute resolution used in contested guardianships.
Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them. Tex. Civ. Prac. & Rem. Code § 154.023(a). While the parties may seek out a mediator with experience in handling contested guardianships, the mediator may not impose his own judgment on the issues for that of the parties. Tex. Civ. Prac. & Rem. Code § 154.023(b).
Contested guardianships can involve a number of issues, including whether the proposed ward is incapacitated, who should serve as guardian, whether an applicant or contestant has an adverse interest, and questions of suitability to serve as a fiduciary. These issues are often fact driven and highly emotional. As a result, parties can be hesitant or even reluctant to mediate. Nevertheless, courts routinely require the parties to attempt mediation before being granted a trial date. For that reason, mediation should be a viable alternative to an expensive guardianship contest.
A court may, on its own motion or the motion of a party, refer a pending dispute for resolution by an alternative dispute resolution procedure like mediation. Tex. Civ. Prac. & Rem. Code § 154.021(a). In so doing, the court shall confer with the parties in the determination of the most appropriate alternative resolution procedure. Tex. Civ. Prac. & Rem. Code § 154.021(b).
Either on written agreement of the parties or on the court’s own motion, the court may refer a contested guardianship proceeding to mediation. Tex. Est. Code § 1055.151(a). When a contested proceeding is referred to mediation under section 1055.151(a), the applicant must still prove that the proposed ward is an incapacitated person even when incapacity is to be mediated. Tex. Est. Code § 1055.151(b)(1). Additionally, during the mediation, all parties to the proceeding shall evaluate alternatives to guardianship and available supports and services that may avoid the need for appointment of a guardian. Tex. Est. Code § 1055.151(b)(2).
A mediated settlement agreement is binding if the agreement—
(a)(1) provides, in a prominently displayed statement that is in boldfaced type, in capital letters, or underlined, that the agreement is not subject to revocation by the parties;
(2) is signed by each party to the agreement; and
(3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.
(b) If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule or law.
(c) Notwithstanding Subsections (a) and (b), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that the agreement is not in the ward’s or proposed ward’s best interests.
Practice Pointer: Practitioners should remember to consider the costs of mediation. Under section 1055.151(c), the costs of the mediation shall be paid by the parties to the proceeding unless otherwise ordered by the court. If the parties are unable to pay the costs of the mediation, the court may refer the parties to a local alternative dispute resolution center if one exists in that county.
Because contested guardianships can be emotionally charged, parties can sometimes resist or avoid appearing at mediation and, even if they do appear, negotiating in good faith. Be mindful that a trial judge has inherent authority to hold parties in contempt for refusal to physically appear at mediation. However, the court cannot compel the parties to negotiate in “good faith.” Gleason v. Lawson, 850 S.W.2d 714, 717 (Tex. App.—Corpus Christi–Edinburg 1993, no writ).
A court may, on the request of any party, appoint a qualified mediator. Alternatively, the parties can agree among themselves who will serve to mediate a contested guardianship. When selecting a mediator, factors to consider are (1) the person’s qualifications and experience, (2) the cost of mediation, (3) the availability of the mediator, and (4) the success rate of the mediator. Another factor to consider, though not required, is whether the mediator has completed the Office of Court Administration (OCA) guardianship mediation training. The OCA by rule shall establish a training course with at least twenty-four hours of training for persons facilitating mediation under title 3 of the Texas Estates Code that may be provided by a mediation training provider approved by the office. Tex. Gov’t Code § 155.301. Many former probate judges and guardianship practitioners avail themselves of mediation services. However, depending on the practitioner’s location, finding a mediator with experience in guardianships can be a challenge.
§ 10.11:4Effect of Written Settlement
If the parties reach a settlement and execute a written settlement agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract. Tex. Civ. Prac. & Rem. Code § 154.071(a). Keep in mind that while courts are eager for parties to reach agreements, having a mediated settlement agreement does not guarantee that the court will be able to carry out its terms. In other words, the court will not allow the parties to agree to something not otherwise allowed in the Texas Estates Code. For example, the parties to a contested guardianship cannot agree that the proposed ward is incapacitated without evidence to support that finding. Likewise, the parties cannot agree to a person’s serving as guardian if the person is otherwise disqualified. So when reaching an agreement, the parties must make sure it includes terms that the court can and will accept in accordance with the applicable statutes.