Foreign Guardianships
The increasing ease of mobility in today’s current population may impact existing guardianships, especially when a ward travels across state lines. Although Texas has not yet adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), interstate guardianships are addressed in Texas Estates Code chapter 1253. See section 13.2:4 below. Because Texas practitioners are likely to face interstate guardianship issues involving foreign jurisdictions that have adopted the UAGPPJA, this chapter references provisions of the UAGPPJA as well as the Estates Code. It also reviews foreign guardianship issues under the topics of original proceedings (see section 13.2), interstate transfers (section 13.3), actions by foreign guardians (section 13.4), and actions regarding nonresident wards (section 13.5).
Section 1023.001 of the Texas Estates Code, titled “Venue for Appointment of Guardian,” provides that “a proceeding for the appointment of a guardian for the person or estate, or both, of an incapacitated person shall be brought in the county in which the proposed ward resides or is located on the date the application is filed or in the county in which the principal estate of the proposed ward is located.” Tex. Est. Code § 1023.001(a) (emphasis added). Section 1023.001 is considered a “presence jurisdiction” statute, meaning that a Texas probate court can exercise jurisdiction over a person or his estate if the person is merely “present” in that county on the date the guardianship application is filed. This “presence jurisdiction” statute can often result in difficult interstate guardianship proceedings in which Texas courts are able to exercise jurisdiction over individuals located in Texas although they are residents of another state. The use of “venue” in this statute appears to presume that the jurisdictional conflict would be between counties within Texas rather than between states.
Texas courts have heard two notable multijurisdictional guardianship cases that have garnered national attention and that demonstrate the challenges that courts face due to lack of uniformity in state guardianship statutes. See In re Glasser, 2011 WL 2898956 (N.J. Super. Ct. App. Div. July 21, 2011); In re Guardianship of Glasser, 297 S.W.3d 369 (Tex. App.—San Antonio 2009, no pet.); In re Guardianship of Parker, 189 P.3d 730 (Okla. Civ. App. 2008, no pet.); In re Guardianship of Parker, 275 S.W.3d 623 (Tex. App.—Amarillo 2008, no pet.). These cases also highlight the necessity of cooperation between the courts of multiple states with which the alleged incapacitated person has contact. The Glasser and Parker cases are similar in that they involve temporary guardianships granted in Texas due to its presence jurisdiction statute when both alleged incapacitated persons were clearly residents of other states. The court in Glasser was presented with the problem of how to protect Mrs. Glasser, who was in Texas, when no guardianship proceeding was pending in her home state of New Jersey. In Parker, however, the Texas trial court refused to recognize an Oklahoma court’s guardianship order, holding that it was invalid because the guardianship application in Oklahoma was brought to defeat the Texas court’s initial jurisdiction. The Glasser case was resolved by the Texas court’s deferring to the New Jersey court (subsequent to the filing of a guardianship proceeding there) as the true residence of the proposed ward. The Parker case, however, resulted in the appointment of different guardians of the person and estate by two different states. See section 13.2:3 below for further discussion of these cases.
§ 13.2:1Guardianship Proceedings Filed in Texas and in Foreign Jurisdiction
The Texas legislature has attempted to tackle the Glasser scenario by taking initial steps to address multijurisdictional conflicts in original proceedings. See Tex. Est. Code §§ 1253.101–.103 (formerly Texas Probate Code section 894, enacted in 2007).
Under section 1253.101, a court in which a guardianship proceeding is filed and venue of the proceeding is proper may delay further action in the proceeding in that court if—
1.another guardianship proceeding involving a matter at issue in the proceeding filed in the court is subsequently filed in a court in a foreign jurisdiction; and
2.venue of the proceeding in the foreign court is proper.
A recent case involving guardianship proceedings filed in Texas and Florida for the same individual shows the complexities that may arise in multijurisdictional conflicts. See In re Fontaine, No. 12-17-00400-CV, 2018 WL 720802 (Tex. App.—Tyler Feb. 6, 2018, no pet.). In March 2016 the daughter, Margret, filed a guardianship application for her father in Sabine County, Texas. The father contested the guardianship and revealed a declaration of guardian disqualifying Margret and naming his stepson, Pippin, who lived in Florida, as the desired guardian. In June 2016, the Texas court determined that the father was not incapacitated, but the court did not sign an order until two months later. In the two-month period prior to the court’s order, the father moved to Florida to live with Pippin. In July 2017, the daughter filed for temporary guardianship and for a temporary restraining order (TRO) in the Texas court. Not realizing that the court had actually dismissed the guardianship earlier, the Texas court granted the TRO and ordered that the father be returned to Texas. Pippin then filed for plenary guardianship in Florida in August 2017. Margret also went to Florida and brought her father back to Texas. However, in September 2017 at the temporary injunction hearing in Texas, noting that the case had been dismissed in August 2016, the court denied Margret’s temporary injunction. Margret then filed for guardianship in a new cause number in Texas. The father entered a special appearance claiming to be a Florida resident.
The Texas court granted the special appearance and dismissed Margret’s guardianship application. Margret applied to the court of appeals for a writ of mandamus in December 2017. In February 2018, the Florida court appointed Pippin as plenary guardian for the father. The Tyler court of appeals then denied the writ of mandamus, stating that an interlocutory appeal is the remedy for an order that grants a special appearance. The appellate court, without citing either the Texas Estates Code or the UAGPPJA, also stated that Margret could develop the merits of her case in a Florida court with an eventual outcome not predetermined by the Texas district court’s ruling.
§ 13.2:2Determination of Most Appropriate Forum for Certain Guardianship Proceedings
Under section 1253.102 of the Texas Estates Code, a court that delays further action in a guardianship proceeding under section 1253.101 shall determine whether venue of the proceeding is more suitable in that court or in the foreign court. In making that determination, the court may consider—
1.the interests of justice;
2.the best interests of the ward or proposed ward;
3.the convenience of the parties; and
4.the preference of the ward or proposed ward, if the ward or proposed ward is twelve years of age or older.
Section 1253.103 adds that a court that delays further action may issue any order it considers necessary to protect the proposed ward or the proposed ward’s estate. Tex. Est. Code § 1253.103.
According to section 1253.102(c), the court must resume the guardianship proceeding if the court determines that venue is more suitable in the Texas court. If the court determines that venue is more suitable in the foreign court, the court must, with the consent of the foreign court, transfer the proceeding to the foreign court. Tex. Est. Code § 1253.102(c).
§ 13.2:3Jurisdiction Due to Unjustifiable Conduct
The Texas legislature has provided the courts the ability to decline jurisdiction of a guardianship matter if the court believes it acquired personal jurisdiction over the proposed ward due to the unjustifiable conduct on the part of one or more of the parties in the guardianship proceeding. See Tex. Est. Code §§ 1253.151, 1253.152 (formerly Texas Probate Code section 895, enacted in 2011). The legislature has also determined it is necessary to empower the courts in these situations to assess costs and expenses as a sanction on parties who acquired the court’s jurisdiction by unjustifiable conduct. In In re Guardianship of Parker, 189 P.3d 730 (Okla. Civ. App. 2008, no pet.); In re Guardianship of Parker, 275 S.W.3d 623 (Tex. App.—Amarillo 2008, no pet.); and In re Glasser, 2011 WL 2898956 (N.J. Super. Ct. App. Div. July 21, 2011); In re Guardianship of Glasser, 297 S.W.3d 369 (Tex. App.—San Antonio 2009, no pet.), one party was responsible for transporting the alleged incapacitated person from the foreign jurisdiction to Texas without court permission and without notifying the other parties in the matter. One party’s sudden move of the alleged incapacitated person to Texas may be motivated by the tactical advantage of effectuating personal service on and personal jurisdiction over the person (and, in the case of Parker, the estate as well, although there was no estate in Texas).
Section 1253.151 of the Texas Estates Code provides that, if at any time a court determines that it acquired jurisdiction of a proceeding for the appointment of a guardian of the person, estate, or both of a ward or proposed ward because of unjustifiable conduct, the court may—
1.decline to exercise jurisdiction;
2.exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the ward or proposed ward or the protection of the ward’s or proposed ward’s property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
3.continue to exercise jurisdiction after considering the extent to which the ward or proposed ward and all persons required to be notified of the proceedings have acquiesced in the exercise of the court’s jurisdiction, whether the court of this state is a more appropriate forum than the court of any other state after considering the factors described by section 1253.102(b) of the Estates Code and whether the court of any other state would have jurisdiction under the factual circumstances of the matter.
Section 1253.152 of the Estates Code provides that, if a court determines that it acquired jurisdiction of a proceeding for the appointment of a guardian of the person, estate, or both of a ward or proposed ward because a party seeking to invoke the court’s jurisdiction engaged in unjustifiable conduct, the court may assess against that party necessary and reasonable expenses, including attorney’s fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against the state of Texas, an instrumentality of the state of Texas, or a governmental subdivision, agency, or instrumentality unless authorized by other law. Tex. Est. Code § 1253.152.
§ 13.2:4
Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA)
Interstate guardianship practice has been dramatically affected since the promulgation of the UAGPPJA in 2007. The UAGPPJA, because of the support of numerous national senior protection organizations, has now been adopted in forty-six states, Puerto Rico, the Virgin Islands, and the District of Columbia. The complete Act and a map indicating the jurisdictions that have adopted the UAGPPJA and showing the four states, including Texas, that have not adopted the Act are available at the Uniform Law Commission website, www.uniformlaws.org. The Texas legislature has adopted one provision of the Act as Texas Estates Code sections 1253.151–.152, which were taken from section 207 of the UAGPPJA, but Texas is one of only four states that have not fully adopted the UAGPPJA. The other three states are Florida, Kansas, and Michigan. In 2017, the Virgin Islands was the final U.S. territory to adopt the Act. In 2018, Wisconsin became the forty-sixth state to pass the Act. Because the UAGPPJA has been adopted by a significant majority of states in the United States, familiarity with the provisions of the UAGPPJA is necessary in contemplating interstate guardianship issues involving states that have adopted the Act. The American Bar Association Commission on Law and Aging Adult Guardianship Statutory Table of Authorities provides a chart of state statutes referencing state enactments of the UAGPPJA. See www.americanbar.org/content/dam/aba/administrative/law_aging/2019-adult-guardianship-statutory-table-of-authorities.pdf.
The UAGPPJA creates a three-level priority for determining which state has jurisdiction to appoint a guardian or issue a protective order: (1) the home state, (2) a significant-connection state, and (3) another state. Comments to section 203 of the Act state that “the principal objective of this section is to eliminate the possibility of dual appointments or orders” except in emergency situations.
Section 201(a)(2) of the UAGPPJA focuses on the “home state,” which is defined as the state in which the respondent (alleged incapacitated person) was physically present for at least six months immediately before the filing of a petition for protective order or for the appointment of a guardian. See UAGPPJA § 201(a)(2). Section 203 provides that a court has priority jurisdiction to appoint a guardian or issue a protective order if the state in which the application is filed is the respondent’s home state. See UAGPPJA § 203(1).
The second level of priority involves a “significant-connection state,” defined by section 201(a)(3) to mean “a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.” To determine whether a “significant connection” exists, the court must consider the—
1.location of the respondent’s family;
2.length of time the respondent was present in state;
3.location of the respondent’s property; and
4.extent of the respondent’s ties to the state.
UAGPPJA § 201(a)(3), (b).
Under section 203 of the Act, a significant-connection state has jurisdiction to appoint a guardian or issue a protective order if, on the date the petition is filed—
1.the respondent does not have a home state;
2.the court of the respondent’s home state has declined to exercise jurisdiction, having decided that the state in which the petition is filed is a more appropriate forum; or
3.a petition for appointment or order is not pending in the respondent’s home state or another significant-connection state, and, before the court makes an appointment or issues an order, a petition is not filed in the respondent’s home state, an objection is not filed by a person required to be notified of the proceeding by section 208 of the Act, and the court determines that it is an appropriate forum under the nine factors set forth in section 206 of the Act.
UAGPPJA § 203(2).
The third level of priority is any “other state,” provided that the home state and all significant-connection states have declined to exercise jurisdiction because the other state is the more appropriate forum and the jurisdiction in the other state is consistent with the constitutions of the other state and the United States. UAGPPJA § 203(3).
Under section 206 of the Act, a court having jurisdiction under section 203 may decline to exercise jurisdiction if it determines at any time that a court of another state is a more appropriate forum. The court may either dismiss or stay the proceeding and may impose any proper conditions including that a petition for the appointment of a guardian or issuance of protective order be filed promptly in another state.
The Act references nine factors for the court to consider when determining whether a particular court is an appropriate forum. They are—
1.the respondent’s expressed preference;
2.whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from such;
3.the length of time the respondent was present in or a legal resident of a state;
4.the distance of the respondent from the court in each state;
5.the financial circumstances of the respondent’s estate;
6.the nature and location of evidence;
7.the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
8.the familiarity of the court of each state with the facts and issues in the proceeding; and
9.the court’s ability to monitor the conduct of the guardian or conservator.
UAGPPJA § 206.
The UAGPPJA has additional provisions for jurisdiction in emergency or special situations. See UAGPPJA § 204.
Because the UAGPPJA is relatively new, there are not a significant number of reported cases applying the Act; however, courts are now rendering opinions that demonstrate how the UAGPPJA is being interpreted and applied. A few recently reported opinions are helpful in understanding the impact of the Act.
A New York court recently addressed the appropriateness of the State of New York as the proper guardianship forum in In re Appointment of Guardian of J.D.S., 70 Misc.3d 556, 137 N.Y.S.3d 621 (Sur.Ct. 2020), in which New York was determined to be the home state but the court declined to exercise jurisdiction because it determined that North Carolina was the more appropriate forum.
J.D.S. was a thirty-five-year-old intellectually disabled man. His parents were divorced. For the vast majority of his life he had lived with his mother, much of the time in North Carolina. From June 2016 until mid-July 2018, he resided in New York with his father. In mid-July 2018, J.D.S. returned to North Carolina to live with his mother and remained there.
Thereafter, the father and mother cross-petitioned for guardianship in North Carolina and, in addition, within six months of the time J.D.S. left for North Carolina, the father filed a guardianship petition in New York. North Carolina subsequently determined that it was a “significant-connection state” within the meaning of the North Carolina version of the UAGPPJA and notified the New York court of that determination. Since J.D.S. had resided in New York for more than six of the previous twelve months, New York was his home state. The New York court therefore had to determine whether to retain jurisdiction of the case or defer to North Carolina as the more appropriate forum.
The New York court applied the New York version of the UAGPPJA and reviewed the nine factors a court must consider to determine whether that state was an appropriate forum. It noted that it found no case law analyzing and weighing the statutory factors but that the statute is clear that each factor must be considered. J.D.S., 70 Misc.3d 556, 558. Based on the nine statutory factors, the court determined that North Carolina was the most appropriate forum.
Similarly, the application of the UAGPPJA in a case involving a ward with connections to more than one state, each of which has adopted the Act, is illustrated in Schwaber & Kafer P.C. v. Alpizar, 2021 WL 408231, 2021 N.Y. Slip Op. 30327 (N.Y. Sup. Ct. 2021). In this proceeding, a North Carolina guardian registered her guardianship order in New York under the UAGPPJA. The incapacitated person owned income-producing real property in New York. Under New York law, a guardian cannot be sued without the permission of the guardianship court. The plaintiff’s attorneys moved for permission to sue the guardian and the incapacitated person in New York for fees owed. The court held that, pursuant to the transfer and jurisdiction provisions of the UAGPPJA, the motion for permission to litigate had to be made in North Carolina because North Carolina was the more appropriate forum and the guardianship was under the supervision of that court.
Another recent interstate conflict in a contested guardianship proceeding involving Georgia and Florida that was resolved with the application of UAGPPJA demonstrates the beneficial impact of the Act. In In re Estate of Kevin Lee Hanson, 848 S.E.2d 204 (GA Ct. App. 2021, cert. den.), a Georgia appeals court determined that a Georgia probate court erred in concluding that it had jurisdiction to appoint the parents as the son’s permanent guardian and conservator where the son was clearly a Florida resident and where Florida did not decline to exercise jurisdiction.
In a case of first impression, the Georgia court applied the Georgia version of the UAGPPJA while Florida (which is one of only four states that have not adopted the UAGPPJA) had no similar law and determined that Florida was the “home state” of the proposed ward. Kevin lived in Hillsborough County, Florida. Kevin’s parents also lived in Florida. Kevin, at the age of thirty-eight, received a traumatic brain injury when a bridge collapsed in Miami, in 2018. Kevin was treated first in Florida and was then transported to Atlanta for further treatment. While Kevin was still in Georgia, the Hansons filed a petition in the Fulton County, Georgia, probate court seeking to be appointed as Kevin’s emergency coguardians and coconservators. The trial court granted the petition to last for sixty days or until the effective date of the appointment of a permanent guardian/conservator. The Hansons did not notify Babbitt (the mother of Kevin’s children) or the children, all of whom lived in Florida, of the emergency petition.
The Hansons filed a petition in Georgia seeking to be appointed permanent coguardians and coconservators. Babbitt and the children intervened in the proceeding and asked to have the emergency orders set aside, but the court denied that petition. Before the expiration of the first emergency appointment, the Hansons filed a second emergency petition. Babbitt and the children moved to dismiss the petition for permanent orders, arguing that under the Georgia UAGPPJA, jurisdiction belonged in Florida. The probate court denied Babbitt’s motion. Kevin was subsequently transported back to Florida for medical treatment in Sarasota. Even so, the Georgia probate court granted the Hansons’ petition to be appointed permanent guardians and conservators. Babbitt appealed, and the court of appeals remanded it to the Georgia court to consider whether Georgia was a “significant connection state” that would give the Georgia court jurisdiction. On remand, the Georgia trial court again found that it had jurisdiction and issued a new order naming the Hansons as permanent coguardians and coconservators of Kevin’s property, including property located in Florida. Babbitt appealed again, claiming that the Georgia court erred in finding that it had jurisdiction under the UAGPPJA, which had been adopted in Georgia but not in Florida.
The appellate court reversed the permanent guardian/conservator appointment of the Hansons and remanded the case to the trial court with instructions that the Georgia court lacked jurisdiction to appoint permanent guardians/conservators in the matter since Kevin’s home state was Florida and Florida had not declined to exercise jurisdiction. The appellate court stated that the probate court on remand held that it had jurisdiction because Georgia was a “significant-connection state” but that the statute requires that Kevin also not have a “home state” or that the court of Kevin’s “home state” declined to exercise jurisdiction because Georgia was a more appropriate forum. The record showed that Babbitt filed a petition in Hillsborough County, Florida, seeking guardianship of Kevin in late August 2018 and filed a proceeding in Sarasota County after Kevin returned to Florida in October 2018. Thus, neither case could have been dismissed before the Hansons filed their petition in Georgia seeking permanent orders. Babbitt also contended that the Georgia probate court erred in appointing a guardian for a term that exceeds ninety days and ordering a conservatorship regarding property not located in Georgia. The appellate court agreed with Babbitt. Under the UAGPPJA, the Georgia court had special limited jurisdiction to appoint a guardian in an emergency for a term not exceeding ninety days for a respondent who is physically present in Georgia and to appoint a conservator regarding property located only in Georgia. The probate court erred by exceeding these limitations.
This kind of interstate conflict between one state that has adopted the UAGPPJA and another that has not a scenario that could very likely occur in Texas.
An Alabama federal court case highlighted the importance of states adopting the UAGPPJA in order to prevent the implementation of guardianships in multiple states. See Morris v. Trust Company of Virginia, Nos. 2:12-CV-1020-WKW, 2:13-CV-930-WKW, 2015 WL 1475487 (US Dist. Ct. Ala. N. Div. Mar. 31, 2015). In Morris, the children of Amy Morris applied for guardianship in Virginia, alleging that their mother suffered from Alzheimer’s dementia with psychosis. While the Virginia guardianship was pending, Thomas Morris discharged his mother from a Virginia hospital and moved her to a nursing facility in Alabama. The mother then executed a deed of gift transferring her Virginia house and stock worth $1.6 million to her children. The children listed the Virginia house for sale, claiming that their mother did not intend to return to Virginia. The children filed a competing action for guardianship in Alabama. Because Alabama had adopted the UAGPPJA, the Alabama court stayed its proceedings pending the outcome of the guardianship and conservatorship proceedings in Virginia, which was still considered the home state of Amy Morris. The children attempted to nonsuit the Virginia guardianship proceedings, but the court-appointed attorney for Amy objected, claiming her interests differed from those of her children and that she did not have the capacity to change her domicile to Alabama. The Virginia court concluded that Amy was incapacitated before executing the deed of gift to her children, appointed the Trust Company of Virginia as Amy’s conservator, and entered a judgment exceeding $1 million against the children.
Cases involving the application of the UAGPPJAA illustrate its impact on Texas residents and/or Texas litigants.
An Illinois state appellate court ruled that an Illinois resident, who was moved by her son from her home state of Illinois to the son’s home in Texas subsequent to her daughter’s filing of a guardianship proceeding in Illinois (which has adopted the UAGPPJA), was subject to the jurisdiction of the Illinois courts and that orders issued in a later-filed guardianship proceeding in Texas could not deprive the Illinois court of jurisdiction over the person and estate of the Illinois resident. The Illinois court found the Texas statutory scheme to be essentially inferior in that it lacked the elements necessary to defeat the specific provisions of the Uniform Act, stating:
Our review of pertinent Texas law reveals that it has not adopted the Uniform Guardianship Act and that its laws governing jurisdiction over guardianship proceedings is in no way similar to section 203 of the Uniform Guardianship Act. Pursuant to section 1023.001 of [the Texas Estates Code], “a proceeding for the appointment of a guardian for the person or estate, or both, of an incapacitated person shall be brought in the county in which the proposed ward resides or is located on the date the application is filed or in the county in which the principal estate of the proposed ward is located.” There is nothing in the Texas law that connects jurisdiction over a proposed ward to location within the state for a specified period of time. We find that, at a minimum, some type of time requirement regarding a potential ward’s presence within a state and/or connection to a state is required for a state’s law to be “similar to Section 203 [of the Guardianship Jurisdiction Act]” such that section 209(1) of the Guardianship Jurisdiction Act would apply to divest the circuit court of Illinois of jurisdiction. We decline to address specifically what residency and/or connection requirements a state that has not adopted the Guardianship Jurisdiction Act would need to have in place in order to be considered “similar” to section 203 of the Guardianship Jurisdiction Act for purposes of section 209(1) of the Guardianship Jurisdiction Act. We hold only that the Texas law, which contains no such requirements whatsoever, cannot be so considered.
See In re Estate of Kusmanoff, 2017 IL App (5th) 160129, ¶ 75 (citations omitted). This case seems to highlight the possibility that Texas, with its presence jurisdiction, may be used as a safe haven by those who are trying to obtain a guardianship in a state that is not the true “home state” of an incapacitated adult and has a statutory scheme that does not recognize a person’s “home state,” as would forty-six other jurisdictions in the United States.
Texas courts may apply the same concepts and principles found in the UAGPPJA when adjudicating interstate guardianship jurisdiction issues without specifically referencing the Act.
In Lawrence v. Page, No. 01-16-00133-CV, 2016 WL 5947490 (Tex. App.—Houston [1st Dist.] Oct. 13, 2016, no pet.), an incapacitated and physically compromised elderly mother, who had lived in Houston for over fifty years, was removed from Texas for a “vacation” in Georgia by a daughter to whom the mother had given $450,000 over a seven-year period. The “vacationing” daughter promised her sister, who resided in College Station, that the daughter would return their mother to Houston. However, the daughter, now in Georgia, had emptied the elderly mother’s home and left a note to her sister that she and their mother planned to move to Georgia. Half of the mother’s stock was sold the same day of the move, and funds were deposited into the Georgia daughter’s bank account.
The Texas daughter sought and obtained a restraining order from the Harris County probate court against the Georgia daughter and filed for guardianship to protect her mother and her estate. At the hearing, the mother expressed her preference that her Houston residence remain her permanent residence. The court denied a special appearance by the Georgia daughter and the mother, and appointed the Texas daughter as temporary guardian. The court found that the elderly mother would have suffered irreparable harm absent the imposition of the restraining order and injunction due to the Georgia daughter’s financial reliance on her mother. The court applied the legal concept of “domicile” and found that the mother might be “fairly regarded as at home” in Houston, Texas.
Thus Texas courts may, when presented with situations where “presence” jurisdiction would result in an unjust result, apply the “home state” analysis to adjudicate jurisdiction in the proceeding.
The Texas legislature has addressed transfers of guardianship cases to and from other states. See Tex. Est. Code §§ 1253.001–.003, 1253.051–.053, 1253.055, 1253.056 (formerly Texas Probate Code sections 891 and 892, enacted in 2001). However, these statutes are not very detailed, and courts are left to their own discretion about the form of the application, whether relatives must receive notice of the application, whether an attorney or guardian ad litem will be appointed to represent the ward, and whether hearings are required. What is clear is that appointment of attorneys ad litem for wards is not mandatory, and the court is allowed to give full faith and credit to the judgment of the foreign court on the incapacity of the ward and the qualifications and powers of the guardian. Tex. Est. Code § 1253.053(d). These concessions generally make transfers of guardianship to and from foreign courts more efficient and less expensive than original guardianship adjudications. But because the statutes are more detailed for “intrastate” guardianship transfers between Texas counties, courts may be inclined to apply these requirements to interstate guardianship transfers as well. See Tex. Est. Code §§ 1023.002–.010.
§ 13.3:1Transfer of Guardianship to Foreign Jurisdiction
Section 1253.001 of the Texas Estates Code provides that a guardian of the person or estate of a ward may apply to the court that has jurisdiction over the guardianship to transfer the guardianship to a court in a foreign jurisdiction to which the ward has permanently moved. See Tex. Est. Code § 1253.001. Effective September 1, 2021, the transfer to another state may be initiated by the court. See Tex. Est. Code § 1253.001. The Estates Code does not contemplate an application to transfer the guardianship in advance of a prospective move to another jurisdiction. As a practical matter, however, the court with jurisdiction over the proceeding may, on request, approve in advance a provisional placement of the person under guardianship in the foreign jurisdiction and subsequently approve the transfer of the guardianship to that jurisdiction. Obtaining prior Texas court permission to move a ward out of state is recommended because a guardian can be removed if the guardian “is absent from the state for a consecutive period of three or more months without the court’s permission, or removes from the state.” Tex. Est. Code § 1203.051(a)(4). The Estates Code does not list what is required to be stated in an application to transfer a guardianship to a foreign jurisdiction. For an application to transfer a guardianship from one Texas county to another, the Code provides only that “the person shall file a written application in the court in which the guardianship is pending stating the reason for the transfer.” Tex. Est. Code § 1023.003(a). Therefore, a simple application stating the reason for the transfer might be acceptable for an interstate transfer as well. However, to be safe, most practitioners include some variation of the elements required by an original application for guardianship as provided by section 1101.001 of the Estates Code. See forms 13-1 and 13-2 in this chapter for examples of a motion to transfer guardianship to foreign jurisdiction and an order approving motion to transfer.
Notice of the application to transfer a guardianship under Tex. Est. Code § 1253.001 must be served personally on the ward and shall be given to the foreign court to which the guardianship is to be transferred. Tex. Est. Code § 1253.002. The Code does not specify the manner in which notice is to be given to the foreign court. It is best to contact the foreign court to determine the foreign court’s preference and to process how the transfer will occur. The notice should then be filed with the foreign court, and the filing should be documented with the Texas court. This statute does not require that relatives of the ward be notified of the application to transfer.
On a Texas court’s motion or on the motion of the ward or any interested person, the court must hold a hearing to consider the application to transfer the guardianship. Tex. Est. Code § 1253.003(a). Because this statute provides that interested persons may move for a hearing, some courts require that the ward’s relatives receive notice of the application to transfer guardianship. However, under a literal interpretation of the statute, if the court does not desire a hearing and no motions are made by the ward or any interested person, a hearing is not mandatory. Therefore, many guardianship transfers are accomplished without a hearing in a Texas court. The party seeking transfer of the proceeding may wish to consult with the receiving court to confirm if and how additional notices, if required, are to be effectuated.
A Texas court is obligated to transfer the guardianship to the foreign court if the court determines the transfer is in the best interests of the ward, but the transfer of the guardianship must be made contingent on the acceptance of the guardianship in the foreign jurisdiction. Tex. Est. Code § 1253.003(b). The statute does not specify the form of acceptance expected from the foreign court, and it is important to determine the expectations of the Texas court that is being asked to transfer the case. To facilitate the orderly transfer of the guardianship, the Texas court shall coordinate efforts with the foreign court. Tex. Est. Code § 1253.003(c). However, absent extenuating circumstances, a transfer of a guardianship out of Texas may be accomplished by the guardian’s attorney’s contacting the foreign court and facilitating the transfer without the direct communication of the judges involved.
§ 13.3:2Receipt and Acceptance of Foreign Guardianship
A guardian, appointed by a foreign court, of a ward who resides in Texas or who intends to move to Texas may file an application to have the foreign guardianship transferred to the Texas court of the county in which the ward resides or “in which it is intended that the ward will reside.” Tex. Est. Code § 1253.051. The moving party should confer with the court with original jurisdiction over the proceeding to determine how the transfer application is to be filed. Some jurisdictions have staff counsel that can and will initiate the transfer application and process. The only requirement for the application listed in this statute is that a certified copy of all papers of the guardianship filed and recorded in the foreign court be attached to the application. Tex. Est. Code § 1253.051. Presumably, an application for receipt and acceptance of a foreign guardianship should contain most of the information required of an initial guardianship application under section 1101.001 of the Texas Estates Code. However, the applicant should request that the Texas court give full faith and credit to the provisions of the foreign guardianship order concerning the determination of the ward’s incapacity and the rights, powers, and duties of the guardian. See Tex. Est. Code § 1253.053(d). The application should also state that the guardian will file an appointment of resident agent if the guardian is not currently living in Texas. See forms 13-3 and 13-4 in this chapter for examples of an application for receipt and acceptance of foreign guardianship and an order receiving, accepting, and modifying foreign guardianship.
Notice of the application for receipt and acceptance of a foreign guardianship must be served personally on the ward and shall be given to the foreign court from which the guardianship is to be transferred. Tex. Est. Code § 1253.052. The Estates Code does not specify the form of the notice to be given to the foreign court, but any form of notice acceptable to both courts should be sufficient. The Estates Code also does not require notice to relatives of the ward. However, if the law of the state transferring the guardianship requires notice to relatives, the Texas court may want the same relatives to be given notice of the application for receipt and acceptance. The Texas court may also require that the same relatives, who would have been provided notice of a guardianship application in an original proceeding filed in Texas, are to receive notice of the application for receipt and acceptance, and, therefore, the Texas court should be consulted on this issue before the hearing.
If an application for receipt and acceptance of a foreign guardianship is filed in two or more courts with jurisdiction, the proceeding must be heard in the court with jurisdiction over the application filed on the earliest date if venue is otherwise proper in that court. A court that does not have venue to hear the application must transfer the proceeding to the proper court. Tex. Est. Code § 1253.055.
A Texas court reviewing an application for receipt and acceptance of a foreign guardianship should first determine that the proposed guardianship is not a collateral attack on an existing or proposed guardianship in another jurisdiction in Texas or another state. Tex. Est. Code § 1253.053(b)(1). The Texas court is also to consider whether one or more states may have jurisdiction of the application and, if so, whether the application has been filed in the court that is best suited to consider the matter. Tex. Est. Code § 1253.053(b)(2).
The Texas court is required to hold a hearing to consider the application for receipt and acceptance of a foreign guardianship and to consider modifying the administrative procedures or requirements of the proposed transferred guardianship in accordance with local and state law. Tex. Est. Code § 1253.053(a). The statutes do not state any time limits on when this hearing must occur.
If transfer of the guardianship from the foreign jurisdiction to Texas is in the best interests of the ward, the Texas court is required to grant the application. Tex. Est. Code § 1253.053(c). The court is also required to give full faith and credit to the provisions of the foreign guardianship order concerning the determination of the ward’s incapacity and the rights, powers, and duties of the guardian. Tex. Est. Code § 1253.053(d). However, the court may modify the administrative procedures or requirements of the transferred guardianship in accordance with local and state law. Tex. Est. Code § 1253.053(f). The court is to coordinate efforts with the appropriate foreign court to facilitate the orderly transfer of the guardianship. Tex. Est. Code § 1253.053(e). Presumably, the foreign court will send the original pleadings to the clerk of the appropriate Texas court even though certified copies of the pleadings are required to be filed with the original application. If the Texas court denies the application for receipt and acceptance of a guardianship, the foreign guardian can still file an application to be appointed guardian of the incapacitated person under section 1101.001 of the Estates Code. Tex. Est. Code § 1253.056.
The Eighty-fifth Legislature enacted Estates Code section 1253.0515, “Certification or Training of Guardian.” This section, which became effective September 1, 2017, requires that a guardian filing an application for receipt and acceptance of foreign guardianship comply with chapter 155, subchapter C (Standards and Certification for Certain Guardians) or D (Guardianship Registration and Database) (subchapter D was redesignated by the Eighty-sixth Legislature as subchapter F, see Act of May 24, 2019, 86th Leg., R.S., ch. 467 (H.B. 4170), eff. Sept. 1, 2019), of the Texas Government Code, as applicable, and restricts a court from granting an application for receipt and acceptance of foreign guardianship unless the guardian is in compliance with section 1253.0515.
In 2017, the legislature amended Government Code section 155.106 to prohibit a guardianship program from employing an individual to provide guardianship and related services on the program’s behalf (1) if a certificate issued to the individual employed by the program is expired or has been revoked and not been reissued or (2) during the time a certificate issued to the individual employed by the program is suspended.
Chapter 155 of the Government Code was also amended by adding subchapter D (redesignated by the Eighty-sixth Legislature as subchapter F, see Act of May 24, 2019, 86th Leg., R.S., ch. 467 (H.B. 4170), eff. Sept. 1, 2019), which now requires regulation of guardianship programs in Texas. Although these amendments do not apply to guardianship and related services provided by a guardianship program under a contract with the Texas Health and Human Services Commission (HHSC), the Judicial Branch Certification Commission (JBCC), in consultation with the HHSC and other interested parties, was required to adopt minimum standards for the operation of guardianship programs and to design the standards to monitor and ensure the quality of guardianship and related services provided by guardianship programs. Tex. Gov’t Code § 155.252(b). Section 155.252(c) requires that the standards must be designed to ensure continued compliance by a guardianship program with these amendments and other applicable state law. The guardianship program must be registered and must hold a certificate of registration in order to provide guardianship and related services to an incapacitated person or other person described by Government Code section 155.001(4). Tex. Gov’t Code § 155.253. The Texas Supreme Court was required to adopt rules and procedures for issuing, renewing, suspending, or revoking a registration certificate. Tex. Gov’t Code § 155.253.
Effective September 1, 2021, the supreme court released current rules for Registration of Guardianship Programs. See Rule 7.8, Rules of the Judicial Branch Certification Commission, at www.txcourts.gov/media/1452752/jbcc-rules-2021.pdf.
The provisions of Government Code chapter 155, subchapter C, appear to require that a private professional guardian or guardianship program attempting to transfer a foreign guardianship to Texas must comply with Texas certification requirements before a court can accept the guardianship or approve the guardian’s appointment in Texas. Additionally, the recently enacted provisions of Government Code chapter 155, subchapter E, appear to require that a family member guardian must complete online training to be offered by the Office of Court Administration before the court can accept the guardianship or approve the guardian’s appointment in Texas.
The seventh district court of appeals has ruled that the Estates Code establishes the only way to request a Texas court to give full faith and credit to a guardianship order from another state. See In re Guardianship of Parker, 329 S.W.3d 97 (Tex. App.—Amarillo 2010, no pet.) (referencing Texas Probate Code section 892, now codified as Tex. Est. Code §§ 1253.051–.053, 1253.055, 1253.056). In this case, the ward’s son, Edward Parker, attempted to domesticate his Oklahoma guardianship order in a Texas court under the Uniform Enforcement of Foreign Judgments Act, Tex. Civ. Prac. & Rem. Code §§ 35.001–.008. The Texas appellate court held that, as a general rule, a sister state is not required by full faith and credit to enforce a judicial action that is subject to modification under the laws of the rendering state and that a guardianship order is modifiable under the laws of Oklahoma. The court stated, “More importantly, however, Texas has adopted specific provisions of its guardianship statutes that provide for acceptance and full faith and credit by a Texas court of a foreign guardianship. See Tex. Prob. Code Ann. § 892.” Parker, 329 S.W.3d at 103. The court further stated, “We do not believe full faith and credit requires the acceptance of an enforcement mechanism of Parker’s choosing over that expressly provided by Texas statutory provisions.” Parker, 329 S.W.3d at 103.
§ 13.3:3Transfers to and from UAGPPJA States
Because forty-six states and three jurisdictions have passed the UAGPPJA, a significant number of guardianships will be transferred to UAGPPJA states from Texas and from UAGPPJA states to Texas. Therefore, it is important that attorneys and courts become familiar with the UAGPPJA provisions on interstate guardianship transfers. See section 13.2:4 above for discussion of the UAGPPJA.
Section 301(a) of the UAGPPJA allows a guardian to petition the court to transfer a guardianship or conservatorship to another state. It does not require the ward to have permanently moved to the receiving state; the application to transfer can be filed in advance of the ward’s move. See UAGPPJA § 301(d)(1). In the event of a transfer of a guardianship to Texas from a foreign jurisdiction that has adopted the UAGPPJA, notice of the petition must be given to the same persons in Texas who would have been entitled to receive notice of a petition to appoint a guardian in an original proceeding in Texas. UAGPPJA § 301(b). A hearing on the transfer application may be held on the Texas court’s own motion or at the request of the ward or guardian or any other person required to be given notice. UAGPPJA § 301(c). The foreign court will issue a provisional transfer order if the court in the foreign state is satisfied that (1) the ward has moved to Texas or is reasonably expected to move to Texas, (2) the foreign court is satisfied that the Texas court will accept the transfer, (3) plans for care and services for the ward in Texas are reasonable and sufficient, and (4) there are no objections with merit. The foreign court will also confirm that adequate arrangements have been made for the management of the ward’s property before the foreign court signs a provisional transfer order. UAGPPJA § 301(e).
The foreign court will expect the Texas court to issue a provisional order of acceptance and forward a copy of the provisional order to the foreign court. On receipt of the provisional order of acceptance and resolution of any outstanding issues such as final accounting and bond release, the foreign court will issue a final order confirming the transfer and terminating the guardianship in the foreign court. UAGPPJA §§ 301(f), 302.
The UAGPPJA also addresses the transfer of a case from a foreign court (such as one in Texas) to a court in a UAGPPJA state. Section 302 of the UAGPPJA provides that the existing Texas guardian or conservator must petition the foreign court to accept the guardianship or conservatorship. The petition must include a certified copy of the provisional order of transfer from the Texas court. UAGPPJA § 302(a). Notice of the petition to accept transfer must be given to those persons who would be entitled to notice of a new guardianship application in both Texas and the receiving foreign state in the manner required by the foreign state. UAGPPJA § 302(b). Any objector to the transfer has the burden to show that the transfer of the proceeding would be contrary to the interests of the ward. UAGPPJA § 302(d)(1).
The foreign court is expected to issue a provisional order granting the petition to transfer to the foreign court unless the foreign court finds that the transfer would be contrary to the best interests of the ward or that the guardian would be ineligible for appointment in the foreign state. UAGPPJA § 302(d). The court shall issue a final order accepting the proceeding and appointing the guardian in the new state when the court receives the final order from Texas transferring the guardianship to the foreign state. UAGPPJA § 301(f). In granting the petition to transfer, the foreign court must recognize the Texas guardianship order including the determination of incapacity and the appointment of the guardian. UAGPPJA § 302(g). The foreign court then has ninety days from the date of the final order to determine whether the guardianship needs to be modified to conform to the laws of the foreign state. UAGPPJA § 302(f).
If the foreign court denies the petition to accept the transfer of the guardianship, the Texas guardian is not prohibited from seeking appointment as guardian under the foreign state’s ordinary procedures provided that the foreign court has jurisdiction to make such an appointment. UAGPPJA § 302(h).
One case highlights an issue of confusion involving the “provisional order of transfer” required by a state that has passed the UAGPPJA (New York) and is receiving a transfer from a state that has not passed the UAGPPJA (Texas). In In re Application of B.A.M.W., 989 N.Y.S.2d 603 (N.Y. Sup. Ct. 2014), the mother of the ward was appointed as guardian of the person in Texas in 2012, then moved to New York and attempted to transfer the Texas guardianship to New York. The court in New York denied the mother’s transfer petition because it did not include a certified copy of a Texas provisional order of transfer. The mother then sent a certified copy of the Texas order appointing her as guardian, which the New York court said did not cure the problem. The New York court went to the Delaware state court’s website and included in its opinion a sample provisional transfer order “in an effort to ease the burden on the practitioner in this at times challenging and emerging area of law.” In re B.A.M.W., 989 N.Y.S.2d at 621.
An Alabama case emphasized that the state receiving the guardianship must accept the guardianship and its guardian “as is” or reject the transfer during the “provisional order” stage under the UAGPPJA. In Sears v. Hampton, 143 So. 3d 151 (Ala. 2013), Sears was appointed as guardian of her mother in Kentucky. Two years later, Sears applied to the Kentucky court for a provisional order to transfer the guardianship to Alabama where she and her mother were living. The Kentucky court issued the provisional transfer order. Sears then petitioned the Alabama court for a provisional order accepting the transfer of the guardianship. Another daughter of the mother disagreed with some expenditures that Sears made from her mother’s estate and filed an objection in the Alabama court. The Alabama court appointed a guardian ad litem who recommended that the court appoint the county guardian to take Sears’s place as guardian. Sears appealed. The Alabama Supreme Court ruled that the probate court failed to comply with Alabama’s version of the UAGPPJA by appointing a different guardian during the “provisional order” stage and prior to entering a final transfer order. During the “provisional order” stage, Sears’s letters of guardianship from Kentucky were still in effect, which meant that different appointed fiduciaries for the mother had conflicting and competing authority. The Alabama Supreme Court noted that any changes to the guardianship by the receiving court could be made only after a final order of acceptance had been entered and that the UAGPPJA provides a ninety-day period after acceptance of the final order to make any modifications to conform the guardianship to the laws of the accepting state.
Practice Pointer: The American Bar Association has devoted extensive resources to documenting cases where application of the UAGPPJA, if adopted, would have prevented elder abuse. See www.americanbar.org/content/dam/aba/administrative/law_aging/story_chart_sorted_by_first_state.pdf. Because Texas has not adopted the UAGPPJA, and because the UAGPPJA is now the dominant law and language in interstate guardianship proceedings, practitioners are advised to consult additional resources provided by the American Bar Association Commission on Law and Aging. See www.americanbar.org/groups/law_aging/resources/guardianship_law_practice/guardianship_jurisdiction/.
§ 13.4Actions in Texas by Foreign Guardian
§ 13.4:1Nonresident Guardian of Nonresident Ward’s Estate
Occasionally, a foreign guardian will need to either manage or sell a nonresident ward’s real or personal property located in Texas. Section 1252.051 of the Texas Estates Code provides for the appointment of the foreign guardian through the functional equivalent of an ancillary guardianship proceeding in Texas. This statute allows the Texas court to give full faith and credit to the foreign court’s adjudication of the ward’s incapacity and to the foreign guardian’s appointment as guardian. However, the nonresident guardian of a Texas estate must still comply with a number of procedural requirements before the Texas court will give the foreign guardian any authority over the nonresident ward’s Texas estate.
A nonresident of Texas may be appointed and qualified as guardian or coguardian of a nonresident ward’s estate located in Texas in the same manner provided by the Estates Code for the appointment and qualification of a resident as guardian of the estate of an incapacitated person if—
1.a court of competent jurisdiction in the geographical jurisdiction in which the nonresident resides appointed the nonresident guardian;
2.the nonresident is qualified as guardian or as a fiduciary legal representative by any name known in the foreign jurisdiction of the property or estate of the ward located in the jurisdiction of the foreign court; and
3.with the written application for appointment in the county court of any county in Texas in which all or part of the ward’s estate is located, the nonresident files a complete transcript of the proceedings from the records of the court in which the nonresident applicant was appointed, showing the applicant’s appointment and qualification as the guardian or fiduciary legal representative of the ward’s property or estate.
The transcript must be under court seal, if any, and certified to and attested by the clerk of the foreign court or the officer of the court charged by law with custody of the court records. The certificate of the judge, chief justice, or presiding magistrate of the foreign court must be attached to the transcript, certifying that the attestation of the transcript by the clerk or legal custodian of the court records is in correct form. Tex. Est. Code § 1252.052(b). Because of these requirements, filing a complete transcript of the foreign court’s proceedings can be expensive and time-consuming.
If the nonresident applicant meets these requirements, the Texas court must enter an order appointing the nonresident as guardian of the estate of the Texas property without the necessity of any notice or citation. Tex. Est. Code § 1252.052(a). Presumably, the Texas court will require the foreign guardian to post a corporate surety bond payable to the Texas judge who will be supervising the guardianship. In some cases this may be problematic because some out-of-state guardianship providers such as governmental entities may be prohibited from serving as guardian or posting a bond in a foreign state. In this situation it may be necessary to ask for the appointment of a professional guardian licensed in Texas. See forms 13-5 and 13-6 in this chapter.
The nonresident guardian must also file an appointment of resident agent to accept service of process in all actions or proceedings with respect to the Texas guardianship estate. Presumably, the foreign guardian must also sign an oath similar to that of a resident guardian. The foreign guardian will then have qualified to serve as guardian over the Texas estate, and the Texas clerk will then issue letters of guardianship to the nonresident guardian. Tex. Est. Code § 1252.052(b).
After qualification, the nonresident guardian must file an inventory and appraisement of the estate of the ward in Texas subject to the jurisdiction of the Texas court and subject to all applicable provisions of the Estates Code with respect to the handling and settlement of estates by resident guardians. Tex. Est. Code § 1252.053. A resident guardian who has any of the ward’s estate may be ordered by the court to deliver the estate to a duly qualified and acting foreign guardian of the ward. Tex. Est. Code § 1252.054. This process may be streamlined if funds resulting from the sale of property are deposited into the registry of the Texas court and then transferred to the foreign guardian pursuant to the foreign guardian’s existing bond.
The nonresident guardianship is often short-lived because its usual purpose is to liquidate Texas assets to support the ward’s livelihood in a foreign jurisdiction. Provisions of the Estates Code regarding sales of real and personal property must be followed, including the posting of an adequate bond or the deposit of proceeds of sale into the registry of the court. On the liquidation of Texas assets, the Texas court will often issue an order transferring the net proceeds of sale to the guardianship in the foreign court and then terminate the Texas proceeding on the filing of an account for final settlement and application to terminate the guardianship in Texas. See Tex. Est. Code § 1252.055. It is usually necessary for the nonresident guardian appointed in Texas to coordinate with the original appointing court and to obtain mirror orders from that court for actions to be taken in Texas.
§ 13.4:2Nonresident Guardian’s Removal of Ward’s Property from Texas
The Texas Estates Code also allows a nonresident guardian, even without complying with the ancillary guardianship procedure described at section 13.4:1 above, to remove personal property of the ward out of the state if (1) the removal does not conflict with the tenure of the property or the terms and limitations of the guardianship under which the property is held and (2) all debts known to exist against the estate in Texas are paid or secured by bond payable to and approved by the judge of the court in which guardianship proceedings are pending. Tex. Est. Code § 1252.055.
It is unclear, however, what type of procedure or order is required to allow the foreign guardian to remove such property from Texas and what protection is provided to the entity in Texas that releases the ward’s property to the foreign guardian.
§ 13.4:3Recognition under UAGPPJA
Article 4 of the UAGPPJA provides a uniform process by which guardianship orders may be registered, enforced, and given full faith and credit by all jurisdictions that have adopted the UAGPPJA. However, Texas has not adopted article 4 of the UAGPPJA, and guardianship orders issued by foreign courts cannot be registered and recognized by Texas courts. See section 13.2:4 above for discussion of the UAGPPJA.
§ 13.5Actions Regarding Nonresident Ward
§ 13.5:1Resident Guardian of Nonresident Ward’s Texas Estate
Section 1252.001 of the Texas Estates Code provides for the appointment of a resident guardian of a nonresident incapacitated person’s Texas estate. The appointment must be considered in the same manner as a guardianship of the estate of a resident of Texas. A court in the county in which the principal estate of the nonresident ward is located has jurisdiction to appoint a guardian. Tex. Est. Code § 1252.001(b). The court is required to take all actions and make all necessary orders with respect to the estate of the ward for the maintenance, support, care, or education of the ward out of the proceeds of the ward’s estate, in the same manner as if the ward were a resident of Texas who was sent abroad by the court for education or treatment. Tex. Est. Code § 1252.002. If a nonresident guardian of the estate later qualifies in Texas under section 1252.051 of the Estates Code, the court is to close the resident guardianship and may order the resident guardian to distribute the ward’s estate to the nonresident qualified guardian. Tex. Est. Code §§ 1252.003, 1252.054.
§ 13.5:2Recognition under UAGPPJA
A Texas guardian who is guardian of the person or estate of a nonresident ward may utilize the UAGPPJA to manage the ward’s person and estate in a foreign jurisdiction pursuant to article 4 of the UAGPPJA. Section 401 of the UAGPPJA allows a guardian who has been appointed in Texas to register the guardianship order in a foreign jurisdiction by filing, as a foreign judgment in a court in the appropriate county, certified copies of the order and the guardian’s letters of guardianship. A petition for the appointment of a guardian must not currently be pending in the foreign jurisdiction in which the Texas guardian is seeking to have the Texas guardianship order recognized. The Texas guardian must also give notice to the Texas court with jurisdiction over the existing guardianship indicating the guardian’s intent to register the guardianship in the foreign jurisdiction. UAGPPJA § 401. The Texas guardian may also secure and file protective orders in a foreign jurisdiction in which property belonging to the protected person is located. UAGPPJA § 402.
Once the guardianship or protective order is registered in the foreign jurisdiction, the Texas guardian may exercise all powers authorized in the Texas order other than those prohibited under the laws of the foreign jurisdiction including maintaining actions and proceedings in the foreign jurisdiction subject to any conditions imposed on nonresident parties. UAGPPJA § 403(a). Therefore, the appointment of a resident agent in the foreign jurisdiction may be necessary. The court in the foreign jurisdiction may also grant any relief available under the UAGPPJA and the laws of the foreign jurisdiction to enforce the registered order. UAGPPJA § 403(b). See section 13.2:4 above for discussion of the UAGPPJA.
A nonresident guardian or any interested party may also apply to the court in the county in which the nonresident ward’s estate is located for the appointment of a suitable person as receiver to take charge of the estate. The applicant must show that the ward’s estate is in danger of injury, loss, or waste and that there is no guardian of the estate in Texas and that one is not necessary. The court’s order appointing the receiver must specify the duties and powers necessary for the receiver to protect, preserve, and conserve the ward’s estate. Tex. Est. Code § 1354.001.
The court order shall require a receiver appointed under section 1354.001 to give bond as in ordinary receiverships in an amount the judge deems necessary to protect the estate. Tex. Est. Code § 1354.002. The person who is appointed receiver shall proceed to take charge of the endangered estate pursuant to the powers and duties vested in the person by the order of appointment and subsequent orders made by the judge.
If the needs of the incapacitated person require the use of the income or corpus of the estate for the education, clothing, or subsistence of the incapacitated person, the judge, with or without application, shall enter an order in the judge’s guardianship docket that appropriates an amount of income or corpus that is sufficient for that purpose. The receiver shall use the amount appropriated by the court to pay a claim for the education, clothing, or subsistence of the minor or other incapacitated person that is presented to the judge for approval and ordered by the judge to be paid. Tex. Est. Code § 1354.004.
If the receiver has funds in excess of what is needed for current necessities and expenses of the incapacitated person, the receiver may invest such funds with court approval on the terms and conditions provided by the Texas Estates Code for investments by guardians. The receiver shall report to the judge all investments made in the same manner that a report is required of a guardian. Tex. Est. Code § 1354.005.
All necessary expenses incurred by the receiver in administering the estate may be rendered monthly to the judge in the form of a sworn statement of account that includes a report of the receiver’s acts, the condition of the estate, the status of the threatened danger to the estate, and the progress made toward abatement of the danger. If the judge is satisfied that the statement is correct and reasonable, the judge shall promptly enter an order approving the expenses and authorizing the receiver to be reimbursed from the funds of the estate in the receiver’s hands. A receiver shall be compensated for services rendered in the same amount as provided for similar services rendered by guardians of estates. Tex. Est. Code § 1354.006.
When the ward’s estate is no longer liable to injury, loss, or waste, the receiver shall report to the judge and file a full and final sworn account of all property of the estate the receiver received or had on hand when the receivership was pending, all sums paid out, all acts performed by the receiver with respect to the estate, and all property of the estate that remains in the receiver’s hands on the date of the report. On the filing of the report, the clerk shall issue posted notice to all persons interested in the welfare of the incapacitated person and shall give personal notice to the person who has custody of the incapacitated person to appear before the judge and contest the report and account if the person desires. Tex. Est. Code § 1354.007.
If the judge is satisfied that the danger to the estate has abated and that the account is correct, the judge shall enter an order finding that the danger to the estate has abated and shall direct the receiver to deliver the estate to the person from whom the receiver took possession as receiver, to the person who has custody of the incapacitated person, or to another person as the judge may find is entitled to possession of the estate. A person who receives the estate under these circumstances shall file an appropriate receipt for the estate that is delivered to the person. The judge’s order shall discharge the receivership and the sureties on the bond of the receiver. If the judge is not satisfied that the danger has abated or is not satisfied with the receiver’s report and account, the judge shall enter an order that continues the receivership. Tex. Est. Code § 1354.008.
Practice Pointer: Practitioners should carefully consider whether a receivership is the most effective means to remedy the situation and circumstances to be addressed by the court. The statutory scheme for receivership is considerably less detailed and onerous than are guardianship provisions. A case requiring the maximum amount of safeguards and monitoring may be best suited for guardianship, whereas a matter that requires quick and expeditious resolution without significant controversy may best be addressed by the appointment of a receiver.