Creating Guardianships
§ 4.1Purpose of Permanent Guardianship
The court may appoint a guardian for an incapacitated person if it has clear and convincing proof that the person is incapacitated, that it is in the best interests of the proposed ward to have a guardian appointed, that the rights or property of the proposed ward will be protected by the appointment, and that alternatives to guardianship and supports and services available to the proposed ward that would avoid the need of a guardianship have been considered and are not feasible. Tex. Est. Code § 1101.101(a)(1). A definition of the term incapacitated person is found at Tex. Est. Code § 1002.017 (see section 4.5 below). A ward is a person for whom a guardian has been appointed. Tex. Est. Code § 1002.030.
The guardian’s ability to act in most circumstances will depend on orders of the court. Tex. Est. Code §§ 1151.102, 1151.103. The court will appoint a guardian with either full or limited authority over an incapacitated person as indicated by that person’s actual mental or physical limitations and only as necessary to protect and promote the well-being of the person. Tex. Est. Code § 1001.001. The guardianship may be of the person, the estate, or both. Tex. Est. Code § 1101.151(a).
§ 4.2Alternatives to Guardianships and Supports and Services
Amendments to the Texas Estates Code enacted by the 2015 Texas Legislature clarify that alternatives to guardianships and available supports and services that would avoid a guardianship should be a primary focus of the applicant, attorneys and guardians ad litem, and the court in a guardianship proceeding. For a greater discussion of alternatives to guardianship, see chapter 3 of this manual. For further information on alternatives to guardianship, see the current edition of State Bar of Texas, Guardianship Alternatives.
A guardian of the person with full authority over an incapacitated person has the right to have physical possession of the ward and to establish the ward’s legal domicile; the duty to provide care, supervision, and protection for the ward; the duty to provide the ward with clothing, food, medical care, and shelter; the power to consent to medical, psychiatric, and surgical treatment other than inpatient psychiatric commitment of the ward; the power to establish a trust for the ward to be eligible for medical assistance; the power to sign documents necessary or appropriate to facilitate the employment of the ward if the guardian was appointed with full authority over the ward or if the power is specified by court order for a guardian with limited powers over the ward; and the power to transport the ward to an inpatient mental-health facility for a preliminary examination. Tex. Est. Code § 1151.051. However, some of these powers may require specific court authority. The powers of a guardian with limited authority over an incapacitated person are those set forth in the order of appointment or any subsequent orders. Tex. Est. Code § 1101.152. A report on the condition of the ward must be filed at the end of each year of the guardianship. Tex. Est. Code § 1163.101. See sections 8.57 through 8.59 and form 8-35 in this manual.
A guardian of the estate with full authority over an incapacitated person is entitled to possess and manage all properties belonging to the ward; to collect all debts, claims, and obligations due the ward; to bring and defend all suits by or against the ward; and to access the ward’s digital assets. Tex. Est. Code § 1151.101. In addition, the guardian must prudently manage the ward’s property, which frequently includes its sale, investment, rental, or other disposition. Tex. Est. Code §§ 1151.101, 1151.102. The powers of a guardian of the estate with limited authority over an incapacitated person are those set forth in the order of appointment or any subsequent orders. Tex. Est. Code § 1101.152. Within thirty days of qualifying, unless an exception is granted by the court, the guardian must file an initial inventory and appraisement of the ward’s property subject to the guardian’s management. Tex. Est. Code § 1154.051(a). Within sixty days of the end of each year of the guardianship, an account must be filed. Tex. Est. Code §§ 1163.001, 1163.002. See section 7.1 in this manual; see also sections 8.51 through 8.55 and forms 8-31 through 8-34. Except as to the short list of powers set forth in Texas Estates Code section 1151.103, a guardian is required to obtain specific court authority to take any significant action, including but not limited to expending funds, selling or buying property, investing assets, and pursuing and settling claims.
§ 4.5Persons for Whom Guardian May Be Appointed
The Texas Estates Code allows for the appointment of a guardian of an incapacitated person, including—
1.a minor;
2.an adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself, to care for his physical health, or to manage his financial affairs; or
3.a person who must have a guardian to receive money from a governmental source.
Tex. Est. Code §§ 1002.017, 1001.001.
“Minor” is included in the definition of “incapacitated person.” It is more specifically defined as a person under eighteen years of age who has never been married or has not had the disabilities of minority removed for general purposes. Tex. Est. Code § 1002.019.
§ 4.6Persons for Whom Guardian Is Appointed to Receive Government Funds
In recent years the appointment of guardians solely to receive government funds has declined because both the Social Security Administration and the Veterans Administration have established simpler, less costly procedures to appoint persons to receive funds for minor or incapacitated beneficiaries. Attorneys are encouraged to consult legal counsel at the local offices of these agencies about the merits of having a “representative payee” or “VA fiduciary” appointed instead of a guardian. See sections 5.2 through 5.11 in this manual.
Additionally, recent significant changes to the federal regulations relating to veterans benefits also impact the appointment and role of a guardian in related cases. See chapter 5.
However, because some government agencies still require the appointment of a guardian to receive funds to which a minor or an incapacitated person is entitled, the Texas Estates Code provides a special category of guardianship of the person for these situations. See Tex. Est. Code § 1151.251. A government certificate to the effect that the appointment of a guardian is a condition precedent to the payment of funds is prima facie evidence of the necessity for the appointment of a guardian. Tex. Est. Code § 1101.106.
Guardians appointed under Tex. Est. Code § 1151.251 have narrow powers and are not considered general guardians of the estate. They may administer only the funds received from the agency, any interest or profits thereon, and any property acquired with the proceeds. Tex. Est. Code § 1151.251. Because their appointment is authorized by the same provision that authorizes guardianship of incapacitated persons—section 1002.017 of the Estates Code—these guardianships are treated together in this manual.
Both Parents Living and Living Together: No court appointment is necessary for a parent to act only as guardian of the person of a minor, because both parents are natural guardians of the person of the minor. There is no natural guardian of the estate of a minor, but either parent has first priority to be appointed guardian of the minor’s estate. If the parents cannot agree who should be appointed, the court appoints the one it deems better qualified to serve. Tex. Est. Code § 1104.051(a).
Both Parents Living but Not Living Together: The rights of parents who do not live together are equal. The guardianship will be assigned to the one whose appointment would be in the best interests of the minor. Tex. Est. Code § 1104.051(b).
One Parent Dead: If one parent is dead, the surviving parent is the natural guardian of the person of the minor and is entitled to be appointed guardian of the estate. Tex. Est. Code § 1104.051(c).
Both Parents Dead: The order of preference for the guardian of both the person and estate of an orphan is—
1.the person named in the will or written designation of the last surviving parent (Tex. Est. Code § 1104.053(a));
2.the nearest ascendant in the direct line of the minor; if there is more than one ascendant in the same degree in the direct line, the one whose appointment would serve the best interests of the minor, according to the circumstances (Tex. Est. Code § 1104.052(1), (2));
3.the nearest of kin, if there is no qualified ascendant in the direct line willing to serve; if there are two or more kin in the same degree, the one whose appointment would serve the best interests of the minor, according to the circumstances (Tex. Est. Code § 1104.052(3)); and
4.if there is no qualified relative or if no one entitled to be appointed applies therefor, any qualified person appointed by the court (Tex. Est. Code § 1104.052(4)).
Surviving Parent Incapacitated: If the court finds the surviving parent is an incapacitated person, the order of preference for the guardian of both the person and estate of the minor is the same as if both parents are dead, as detailed above.
§ 4.8Guardians of Persons Other Than Minors
When appointing a guardian for a person other than a minor, the court must give preference to the ward’s spouse if he or she is eligible. Tex. Est. Code § 1104.102(1). The eligible person nearest of kin to the ward is entitled to the guardianship if the ward’s spouse is not eligible. Tex. Est. Code § 1104.102(2). If two or more persons are equally entitled to serve, the court must appoint the one whose appointment would serve the best interests of the ward. Tex. Est. Code § 1104.102(3)(B). The surviving parent of an individual who is incapacitated may appoint an eligible person by will or written declaration. Tex. Est. Code §§ 1104.103(a), 1104.152. If there is no qualified spouse or relative willing to serve, any qualified person may be appointed by the court. Tex. Est. Code § 1104.102(3)(C).
Note that even if a proposed ward had previously designated a guardian in a valid declaration of guardian, a court creating a guardianship must still give due consideration to the proposed ward’s preferences at the time the guardianship is created. Tex. Est. Code § 1104.002.
Generally, only one person will be appointed guardian of the person or estate. However, the court may appoint joint guardians, if it is in the best interests of the ward, when the applicants are—
1.a husband and wife;
2.joint managing conservators;
3.coguardians duly appointed under the laws of a jurisdiction other than Texas; or
4.both parents of an adult who is incapacitated if the incapacitated person has not been the subject of a suit affecting the parent-child relationship or has been the subject of such a suit and both the incapacitated adult’s parents were named as joint managing conservators in that suit but are no longer serving in that capacity.
A corporate fiduciary may serve as guardian of the estate if no other person with a prior right is qualified or willing to serve. See Tex. Est. Code § 1002.023. The term corporate fiduciary is defined in Tex. Est. Code § 1002.007.
The applicant’s attorney will often want to obtain waivers from individuals who may also be entitled to the appointment. If the proposed guardian does not have a statutory preference to the appointment, notice must be given or a waiver must be secured from each person with a prior right. See form 4-1 in this chapter. If a qualified person who has not waived a prior right later applies for letters of guardianship, the court must grant the application and revoke the letters previously granted. Tex. Est. Code § 1203.103.
§ 4.12Persons Disqualified to Serve as Guardian
Persons who may not be appointed as guardians include—
1.minors or other incapacitated persons;
2.those who by reason of inexperience, lack of education, or any other good reason are shown to be incapable of properly and prudently managing and controlling the proposed ward or his estate;
3.persons, institutions, or corporations found unsuitable;
4.those whose conduct is notoriously bad, and it is presumed not to be in the best interest of an incapacitated person to appoint as guardian a person who has been finally convicted of certain sexual offenses; aggravated assault; injury to a child, elderly individual, or disabled individual; abandoning or endangering a child; terroristic threat; or continuous violence against the family of the ward or incapacitated person;
5.parties (or children of parties) to a lawsuit affecting the welfare of the proposed ward (unless the court determines that there is no conflict or appoints a guardian ad litem);
6.those indebted to the proposed ward or asserting any claim to property adverse to the interests of the proposed ward;
7.persons disqualified by a declaration of guardian made under Texas Estates Code section 1104.202(b) (see section 3.20 and form 3-10 in this manual);
8.persons not certified to serve as guardian as required by subchapter F, chapter 1104, of the Estates Code;
9.nonresidents who fail to designate a resident agent for service; and
10.persons found to have committed family violence that are subject to a protective order issued under chapter 85 of the Texas Family Code if the proposed ward is protected by the order.
Tex. Est. Code §§ 1104.351–.358.
A guardianship program may not be appointed guardian if it is not properly registered as required by the Texas Government Code or if its registration certificate has expired or has been suspended or revoked. Tex. Est. Code § 1104.359. See also Tex. Gov’t Code ch. 155, subch. F, and Judicial Branch Certification Commission, Guardianship Registration Rules and Resources, txcourts.gov/jbcc/register-a-guardianship/guardianship-registration-rules-and-resources/.
§ 4.13Standing to Bring Guardianship Action
Any person may commence a guardianship proceeding for the appointment of a guardian. Tex. Est. Code §§ 1101.001(a), 1055.001(a). A person who has an interest adverse to a proposed ward may not apply to create a guardianship, contest the creation of a guardianship, contest the appointment of a guardian, or contest an application for complete restoration or modification. Tex. Est. Code § 1055.001(b). The standing of a person with an alleged adverse interest should be challenged by a motion in limine. Tex. Est. Code § 1055.001(c). See section 10.5 and form 10-4 in this manual.
Some courts have held that a person may lack standing to participate in certain claims but not others. See In re Dennis, No. 12-11-00595-CV, 2011 WL 2791126 (Tex. App.—Houston [14th Dist.] July 14, 2011, orig. proceeding) (party lacked standing to participate in guardianship proceeding but able to participate in any restoration hearing).
§ 4.14Testamentary Appointment of Guardian
The last surviving parent of a minor may designate by will or written declaration any qualified person to be guardian of the person of the minor after the parent’s death or in the event of the parent’s incapacity. A person so named, if not otherwise disqualified, is entitled to the appointment in preference to any other person and is also entitled to be appointed guardian of the minor’s estate. Tex. Est. Code § 1104.053(a). See section 3.21 and form 3-10 in this manual.
§ 4.15Selection of Guardian by Minor
If an application is filed for the guardianship of a minor who is twelve years of age or older, the minor may select his guardian by filing a written request with the clerk. The minor’s selection is not absolute. The court must approve the selection as being in the best interest of the minor. Tex. Est. Code § 1104.054(a).
If a guardian has already been appointed, a minor who is twelve years of age or older may select a successor if the previously appointed guardian dies, resigns, or is removed. Tex. Est. Code § 1104.054(b). The minor or his attorney must file a written application to make the selection. See form 4-2 in this chapter. If the court is satisfied that the selected person is suitable and qualified to serve as guardian and the appointment is in the minor’s best interest, it will enter an order appointing the new guardian and revoking the letters of guardianship issued to the former guardian. Tex. Est. Code § 1104.054(b).
§ 4.16Application for Appointment of Guardian
To begin guardianship proceedings, a written application for appointment of a guardian must be filed with the proper court exercising probate jurisdiction. Any person who does not have an interest adverse to the ward may file the application. Tex. Est. Code §§ 1055.001, 1101.001(a). Usually, the applicant is also the person seeking the appointment. Most of the forms and letters in this manual assume that the applicant is also the proposed guardian. The information that must be included and sworn to in the application includes—
1.the proposed ward’s name, gender, date of birth, and address;
2.the name, former name if any, relationship, and address of the person seeking to be appointed guardian;
3.facts showing the court has venue;
4.the type of guardianship sought—of the proposed ward’s person, estate, or both; and whether alternatives to guardianship and available supports and services to avoid guardianship were considered, and whether such alternatives and supports and services are feasible and would avoid the need of a guardianship;
5.the nature and degree of the alleged incapacity;
6.the specific areas of protection and assistance requested and the limitation or termination of rights requested;
7.facts showing why a guardian should be appointed and the interest of the applicant in the appointment;
8.whether a guardianship of any kind exists for the proposed ward in Texas or any other state and, if so, a description of the guardianship;
9.the name and address of any individual or institution having the care and custody of the proposed ward;
10.a detailed description and estimated value of the proposed ward’s liquid assets, including compensation, pension, insurance, or allowance, and nonliquid assets including real property;
11.the name and address of the agent under any power of attorney signed by the proposed ward and a description of the type of power of attorney;
12.if the proposed ward is a minor, the names and addresses of the proposed ward’s parents and siblings; the ages of any siblings, and whether either or both of the parents or any of the siblings are deceased; and, if each of the parents and adult siblings are deceased, the names and addresses of other adult living members related to the proposed ward within the third degree by consanguinity;
13.if the proposed ward is a minor, whether the minor was the subject of a legal or conservatorship proceeding within the last two years and, if so, the court involved, the nature of the proceeding, and the final disposition, if any, of the proceeding;
14.if the proposed ward is an adult, the names and addresses of the proposed ward’s spouse, parents, siblings, and children or, if none, adult next of kin related within the third degree by consanguinity; the ages of any siblings or children; and whether either parent, the spouse, or any child or sibling is deceased; and
15.if applicable, that the person the applicant desires to be appointed guardian is a private professional guardian who is certified under subchapter C, chapter 155, of the Texas Government Code and has complied with the requirements of subchapter G, chapter 1104, of the Texas Estates Code.
The address of a person named in the application may be omitted if the application states that the person either is or was protected by a protective order issued under chapter 85 of the Texas Family Code. A copy of the protective order must be attached as an exhibit, the application must state the county in which the person resides, and additional details regarding notice and citation must be indicated. Tex. Est. Code § 1101.002.
The application must include the last three numbers of the applicant’s driver’s license number, if any, and the last three numbers of the applicant's Social Security number, if the party has been issued a Social Security number. Tex. Civ. Prac. & Rem. Code § 30.014. Some courts request that the same information be included for the incapacitated person.
If appointment of a guardian for a minor is sought, form 4-3 in this chapter should be used. If the ward is an adult incapacitated person, see form 4-4 for partial incapacity and form 4-5 for total incapacity.
Original jurisdiction for guardianship proceedings will depend on the courts available in a given county. The following counties have statutory probate courts: Bexar, Collin, Dallas, Denton, El Paso, Galveston, Harris, Hidalgo, Tarrant, and Travis. Tex. Gov’t Code ch. 25. In those counties, exclusive jurisdiction for guardianship proceedings will be in the statutory probate courts. Tex. Est. Code § 1022.005.
Original jurisdiction for guardianship proceedings in other counties will be in either the constitutional county court or, if one exists, a statutory county court at law that has been given explicit guardianship jurisdiction by statute. Tex. Est. Code § 1022.002.
In counties having no statutory probate court or county court at law exercising probate jurisdiction, contested guardianship proceedings originally filed in the constitutional county court may, on the judge’s motion, and must, on any party’s motion, be transferred to the district court or assigned to a statutory probate judge. However, when all contested matters have been resolved, the guardianship proceeding must be transferred back to the constitutional county court for further proceedings not inconsistent with the district court’s orders. Tex. Est. Code § 1022.003(f). A request for the appointment of a statutory probate judge before the transfer to a district court will mandate the assignment of a statutory probate judge. Tex. Est. Code § 1022.003(b). If the county has a county court at law exercising probate jurisdiction, the full guardianship proceeding, including the contested portion, can be transferred to that county court at law from the constitutional county court. Tex. Est. Code § 1022.004.
Appeals from final orders of all courts exercising probate jurisdiction are to the courts of appeals. Tex. Est. Code § 1022.001(c).
A judge of a statutory probate court, on the motion of a party or person interested in the guardianship, may transfer most pending matters incident or pertaining to the guardianship, including a cause of action relating to a guardianship in which a guardian, ward, or proposed ward is a party, from the district court to the statutory probate court. Tex. Est. Code § 1022.007.
Guardian of Adult Incapacitated Person:The proceeding to appoint a guardian of the person or estate of an incapacitated person is instituted in either the county in which the proposed ward resides or is located on the day the application is filed or the county in which his principal estate is situated. Tex. Est. Code § 1023.001(a).
Guardian of Minor: The proceeding to appoint a guardian of the person or estate of a minor is instituted in the county in which the minor’s parents reside. If the parents live in different counties, venue is in the county in which the parent having sole managing conservatorship resides or, if the parents have joint custody, the county in which the parent with greater access and possession resides. If only one parent is living and that parent has custody, venue is in the county of that parent’s residence. If both parents are dead and the minor was in the custody of a now-deceased parent, venue is in the county in which the last surviving parent having custody resided. If both parents died in a common disaster, venue is in the county in which they resided at the time of death. Tex. Est. Code § 1023.001(b).
Guardian Appointed by Will: The proceeding to appoint a guardian named in the will of the last surviving parent of a minor may be brought in the county in which the will is probated or in the county in which the appointee resides if he resides in Texas. Tex. Est. Code § 1023.001(c).
§ 4.19Transfer of Guardianship to Another County
A guardian or any other interested person may request to transfer guardianship proceedings to another county. The application must state the reason for the request. Tex. Est. Code § 1023.003(a). The court in which the guardianship is pending may also transfer the guardianship, on its own motion, to another county where the ward resides. Tex. Est. Code § 1023.003(b). The sureties on the bond of the guardian must then be personally served to appear and show cause why the application should not be granted. Tex. Est. Code § 1023.004(a). If the application is filed by a person other than the guardian, the guardian must also be personally served. Tex. Est. Code § 1023.004(b). The guardian must be given notice by certified mail if the court makes a motion to transfer the guardianship. Tex. Est. Code § 1023.004(c).
If after hearing the application or the court’s motion the court determines that the transfer would be in the ward’s best interests, and either the ward has resided in the county to which the guardianship is to be transferred for at least six months or good cause is not otherwise shown to deny the transfer, the court will enter an order authorizing the transfer after payment of court costs and requiring that any existing bond remain in effect until a new bond has been given or bond rider has been filed after the court’s review of the transferred guardianship, and certifying that the guardianship is in compliance with the Texas Estates Code at the time of transfer. Tex. Est. Code § 1023.005(a). In determining whether the transfer is in the ward’s best interest the court may consider the interests of justice, the convenience of the parties, and the preference of a ward who is twelve years of age or older. Tex. Est. Code § 1023.005(b). On receipt of an order described complying with Tex. Est. Code § 1023.005(a), the county must accept the transfer of the guardianship. Tex. Est. Code § 1023.005(c). The clerk must record all guardianship papers not yet recorded. On payment of the clerk’s fee, the clerk must transmit in electronic or paper form the case file of the guardianship proceedings and a certified copy of the index of the guardianship records to the clerk of the county to which the guardianship has been transferred. Tex. Est. Code § 1023.006.
The order transferring the guardianship will not take effect until—
1.the case file and a certified copy of the index are filed in electronic or paper form in the office of the county clerk of the county to which the guardianship is transferred, and
2.a certificate under the clerk’s official seal and reporting the filing of the case and a certified copy of the index is filed in electronic or paper form in the court ordering the transfer by the county clerk of the county to which the guardianship was ordered transferred.
Tex. Est. Code § 1023.007. See forms 4-6 and4-7 in this chapter.
When a guardianship is transferred from one county to another, the guardianship continues in the court to which it was transferred as if it had been originally commenced in that court, and that court becomes the court of continuing, exclusive jurisdiction. A proceeding relating to the guardianship that is commenced in the court ordering the transfer continues in the court to which the guardianship is transferred. A judgment or order entered in the guardianship before the transfer has the same effect and shall be enforced as a judgment or order entered by the court to which the guardianship is transferred. The court ordering the transfer does not retain either jurisdiction of the ward or the authority to enforce an order entered for a violation of the Estates Code that occurred before or after the transfer. Tex. Est. Code § 1023.008.
If the court ordering the transfer determines that it is not in the ward’s best interest for the guardian of the estate to continue to serve, the court may in its order of transfer revoke the letters of guardianship and appoint a new guardian. The former guardian shall account for and deliver the estate as required by the Estates Code. Tex. Est. Code § 1023.009.
Not later than the ninetieth day after the transfer takes effect, the court to which the guardianship was transferred shall hold a hearing to consider modifying provisions of the transferred guardianship and enter an order requiring the guardian to give a new bond or file a bond rider with the court to which the guardianship was transferred. Tex. Est. Code § 1023.010.
When a transfer of a guardianship occurs as required by the Estates Code, the transferring court may not be held civilly liable for any injury, damage, or loss to the ward or the ward’s estate that occurs after the transfer. Similarly, the court receiving the transferred guardianship may not be held civilly liable for any injury, damage, or loss to the ward or the ward’s estate that occurs before the transfer. Tex. Est. Code § 1023.011.
§ 4.20Transfer of Contested Guardianship of Minor
If an interested person contests appointment or seeks removal of the guardian of the person of a minor, the judge may order the transfer of the guardianship to a court with continuing jurisdiction over the parent-child relationship. Tex. Est. Code § 1022.008. See section 10.2:5 in this manual.
When an application for appointment of a guardian is filed, a number of persons interested in the welfare of the proposed ward are entitled to notice. The court may not act on an application to create a guardianship until the Monday following ten days after the date that service of notice and citation has been made. Tex. Est. Code § 1051.106.
Citation of all applications for guardianship must be by posting. Tex. Est. Code § 1051.102. In most counties, the clerk of the court will prepare the notice and deliver it to the sheriff or constable to be posted at the courthouse door. Because local practice varies, the attorney should check with the clerk’s office about preparing the notice.
In addition to citation by posting, personal service of citation is also required on (1) a proposed ward who is twelve years of age or older, (2) the parents of a proposed ward if their location is known or can be reasonably ascertained, (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 spouse’s location is 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). Citation to a parent or spouse must also contain a statement notifying the parent or spouse that, if a guardianship is created, the relative must elect in writing to receive notice provided for in section 1151.056 of the Texas Estates Code regarding the ward’s health and residence. Tex. Est. Code § 1051.103(c). Any competent person may waive the issuance and personal service of citation, in person or by attorney, by filing a written waiver with the clerk. Tex. Est. Code § 1051.251. See form 4-8 in this chapter. The attorney ad litem for the proposed ward cannot waive the personal service on the proposed ward. Tex. Est. Code § 1051.055(e).
§ 4.21:3Notice by Certified Mail
Persons who must receive notice by certified or registered mail, return receipt requested, or by any other form of mail that provides proof of delivery include—
1.all the proposed ward’s adult children;
2.all the proposed ward’s adult siblings;
3.the administrator of a nursing home or similar facility in which the proposed ward resides;
4.the operator of a residential facility in which the proposed ward resides;
5.a person known by the applicant to hold a power of attorney signed by the proposed ward;
6.a person designated to serve as the proposed ward’s guardian in a written declaration under subchapter E, chapter 1104, of the Texas Estates Code if the applicant knows of the existence of the declaration;
7.a person designated to serve as a minor’s guardian in the probated will of the minor’s last surviving parent;
8.a person designated to serve as a minor’s guardian in a written declaration of the proposed ward’s last surviving parent before his death if the applicant knows of the declaration; and
9.each adult named in the application as an “other living relative” of the proposed ward within the third degree of consanguinity in the application for guardianship 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.
Notice to a child or sibling must also contain a statement notifying the child or sibling that, if a guardianship is created, the relative must elect in writing to receive notice provided for in section 1151.056 of the Estates Code regarding the ward’s health and residence. Tex. Est. Code § 1051.104(d).
Proof of service by certified mail must be filed by the applicant or applicant’s attorney with the court under oath that notice was mailed, giving the name of each person to whom the notice was mailed if not shown on the proof of delivery. Tex. Est. Code § 1051.104(b).
Estates Code section 1051.106 provides that a court cannot act on an application until the affidavit confirming issuance of notice is filed. However, failure of the applicant to comply with notices to all but the ward’s adult children does not affect the validity of a guardianship that is created. Tex. Est. Code § 1051.104(c).
The court must appoint an attorney ad litem in the guardianship proceeding to represent the proposed ward’s interest. Tex. Est. Code § 1054.001. The court may also appoint a guardian ad litem to represent the proposed ward’s best interests. Tex. Est. Code §§ 1054.051, 1054.054.
§ 4.23Hearing to Appoint Guardian
Appearance of Proposed Ward: The proposed ward must be present at a hearing to appoint a guardian unless the court determines on the record or in its order that an appearance is not necessary. Tex. Est. Code § 1101.051(b). If the proposed ward does not attend, the proposed ward’s attorney ad litem should explain to the court the reason for the proposed ward’s absence.
Jury Trial: The proposed ward or any party in a contested permanent guardianship proceeding is entitled to a jury trial. Tex. Est. Code §§ 1055.052, 1101.052. A jury trial is not authorized in a temporary guardianship. In re Kuhler, 60 S.W.3d 381, 383 (Tex. App.—Amarillo 2001, no pet.). See sections 10.4:7 through 10.4:10 in this manual.
Court’s Duty to Inquire: At the hearing, the court will inquire into the proposed ward’s ability to care for himself and manage his affairs, ascertain the age of a minor proposed ward, and review government reports on a ward for whom a guardian must be appointed to receive government funds. The court will also inquire into the qualifications of the party seeking to be appointed guardian. Tex. Est. Code § 1101.051(a).
The applicant’s attorney should elicit testimony on these subjects from the applicant or other witnesses. The court will also have access to the proposed guardian’s confidential criminal history record information that has been obtained by the clerk in accordance with subchapter I, subtitle B, of the Texas Estates Code. Tex. Est. Code §§ 1104.401–.412.
§ 4.24Standards of Proof of Facts
Clear and Convincing Evidence: Before a guardian may be appointed, the court must find, by clear and convincing evidence, that—
1.the proposed ward is an incapacitated person;
2.it is in the best interests of the proposed ward to have the court appoint a guardian;
3.the rights or property of the proposed ward 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 are not 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).
Note that the applicant must prove incapacity based on recurring acts or occurrences within the preceding six months. Isolated instances of negligence or bad judgment cannot be used to prove incapacity. Tex. Est. Code § 1101.102. Nor can a guardian of a minor’s estate be appointed based on the payment of claims under Texas Estates Code chapter 1355. Tex. Est. Code § 1101.154. If the proposed ward is not a minor, age cannot be the sole basis for granting a guardianship. Tex. Est. Code § 1101.105.
Preponderance of Evidence: The court must also find, based on a preponderance of the evidence, that—
1.the court has venue of the case;
2.the proposed guardian is eligible and entitled to be appointed or is a proper person to be appointed;
3.for a minor, the guardianship is not created for the primary purpose of enabling enrollment in a school or school district; and
4.the proposed ward is either totally without capacity or lacks only some capacity.
Tex. Est. Code § 1101.101(a)(2).
A finding of partial incapacity must also specifically state whether the proposed ward lacks the capacity, or lacks sufficient capacity without supports and services, to make personal decisions regarding residence, voting, operating a motor vehicle, and marriage. Tex. Est. Code § 1101.101(c).
In an uncomplicated or uncontested guardianship, it is frequently possible to obtain the required testimony from the proposed guardian or other qualified witness.
Proof for Receipt of Government Funds: To prove necessity of a guardianship to receive government funds, the applicant may present a governmental certificate explaining that the appointment of a guardian is a condition precedent for payment. Tex. Est. Code § 1101.106.
§ 4.25Physician’s Letter or Certificate
A court may never grant an application to create a guardianship for an adult incapacitated person, a person whose alleged incapacity is intellectual disability, or a person who receives government funds unless a physician’s letter or certificate (often referred to as a CME—Certificate of Medical Examination) is presented to the court. Tex. Est. Code § 1101.103(a).
The physician’s letter or certificate must be dated no more than 120 days before the filing date of the application, must be based on an examination the physician performed not earlier than the 120th day before the date the application is filed, and 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 or 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.
Tex. Est. Code § 1101.103(b). See form 4-9 in this chapter.
If the basis of the proposed ward’s alleged incapacity is intellectual disability, the court may not grant an application to create a guardianship unless the applicant presents a written certificate that complies with section 1101.103(a) and (b) of the Texas Estates Code or the applicant shows that not earlier than twenty-four months before the hearing date the proposed ward was examined by a physician or psychologist licensed in Texas or certified by the Texas Department of Aging and Disability Services and the recommendations include a determination of intellectual disability, or a physician or psychologist licensed by the Department of Aging and Disability Services to perform such an examination has updated or endorsed in writing a prior determination of an intellectual disability for the proposed ward made by a physician or psychologist licensed by the state or certified by the department. Tex. Est. Code § 1101.104.
If the court determines it is necessary, it may appoint a physician to examine the proposed ward after a hearing held for that purpose. The applicant must give the proposed ward and the proposed ward’s attorney ad litem written notice concerning the hearing not later than four days before the date of the hearing. The physician who examines the proposed ward under this section must make available to the attorney ad litem, for inspection, a written letter or certificate from the physician. Tex. Est. Code § 1101.103(c), (d).
§ 4.26Preference of Proposed Ward
Before appointing a guardian, the court shall give due consideration to the proposed ward’s preference of a guardian, regardless of whether the proposed ward has previously designated by declaration a preneed guardian. Tex. Est. Code § 1104.002. When an application is filed for the guardianship of a minor at least twelve years of age, the minor may choose the guardian if the court approves the choice and finds it in the best interests of the minor. Tex. Est. Code § 1104.054(b).
While a proposed ward may express a preference, the court is not obligated to appoint the proposed ward’s selection, and the court will weigh whether the proposed ward retains the ability and judgment to make such a preference and whether such selection is in the proposed ward’s best interest.
§ 4.27Order Appointing Guardian
Total Incapacity: After the hearing on the application for letters of guardianship, if the court finds the ward totally incapacitated, it will enter an order appointing a guardian. The order must specify that the guardian has full authority over the incapacitated person; if necessary, the amount of funds from the corpus of the person’s estate the court will allow the guardian to expend for the education and maintenance of the ward; whether the person is totally incapacitated because of a mental condition; that the person does not have the capacity to operate a motor vehicle, make personal decisions regarding residence, or vote in public elections; and if it is a guardianship of the person of the ward or of both the person and the estate of the ward, the rights of the guardian with respect to Texas Estates Code section 1151.051(c)(1). Tex. Est. Code § 1101.151. The order must also contain specific findings of fact as listed below.
Partial Incapacity: If the court finds that the ward lacks only some capacity to care for himself or to manage property, it will enter an order appointing a guardian with limited powers. The order must contain the findings of fact listed below. It must also identify (1) the specific powers, limitations, or duties of the guardian with respect to the care and management of the ward’s person and property, and (2) the specific rights and powers retained by the ward with and without the necessity for supports and services. If necessary, the order may specify the amount of funds from the corpus of the person’s estate the guardian may spend to educate and maintain the ward. It must also state whether the person is incapacitated because of a mental condition and, if so, whether the person retains the right to make personal decisions regarding residence or vote in public elections or maintains eligibility to hold or obtain a driver’s license. Tex. Est. Code § 1101.152.
Contents of Order: The order must contain findings of fact and specify—
1.the name of the guardian;
2.the name of the ward;
3.whether the guardianship is of the person, the estate, or both;
4.the amount of the guardian’s bond;
5.the names of no more than three appraisers if the guardianship is of the estate and the court deems an appraisal necessary (in most—but not all—counties, appraisers are no longer necessary);
6.that the clerk will issue letters of guardianship when the guardian has qualified; and
7.if the court waives the guardian’s training requirements, that the waiver is in accordance with rules adopted by the supreme court under section 155.203 of the Texas Government Code.
If the physician’s certificate offered as evidence to prove incapacity stated that improvement in the ward’s physical or mental condition was possible and specified that reevaluation within a year should occur, the order appointing the guardian must also include the date by which the guardian must submit an updated physician’s certificate to the court. Tex. Est. Code § 1101.153(a–1).
Notice to Peace Officers in Order Creating Guardianship of Person: An order creating a guardianship of the person that gives the guardian the right to have physical possession of the ward and to establish the ward’s domicile must include the following statement in bold-faced type, in capital letters, or underlined:
Notice to any peace officer of the state of Texas: You may use reasonable efforts to enforce the right of a guardian of the person of a ward to have physical possession of the ward or to establish the ward’s legal domicile as specified in this order. A peace officer who relies on the terms of a court order and the officer’s agency are entitled to the applicable immunity against any civil or other claim regarding the officer’s good faith acts performed in the scope of the officer’s duties in enforcing the terms of this order that relate to the above-mentioned rights of the court-appointed guardian of the person of the ward. Any person who knowingly presents for enforcement an order that is invalid or no longer in effect commits an offense that may be punishable by confinement in jail for as long as two years and a fine of as much as $10,000.
Tex. Est. Code §§ 1101.151(c), 1101.152(c).
See forms 4-10 through 4-12 in this chapter for orders granting guardianships of incapacitated persons.
Some courts will require the witnesses’ testimony to be reduced to writing, signed under oath, and filed and recorded in the minutes of the court. See forms 4-13 and 4-14 in this chapter. The court may properly take judicial notice of evidence from previous hearings concerning the same matter. Trimble v. Texas Department of Protective & Regulatory Service, 981 S.W.2d 211 (Tex. App.—Houston [14th Dist.] 1998, no writ).
§ 4.29Special Protections for Ward
A ward has all the rights, benefits, responsibilities, and privileges granted by the constitutions and laws of Texas and the United States except where specifically limited by a court-ordered guardianship or where otherwise lawfully restricted. Tex. Est. Code § 1151.351(a).
Tex. Est. Code § 1151.351 was added in the 2015 Texas legislative session, creating a bill of rights for wards under guardianships. The ward’s bill of rights lists twenty-five distinct rights and is similar to the elder bill of rights (see section 4.29:2 below). The ward’s bill of rights confirms that an incapacitated person retains as much self-determination as possible, has the right to be informed of all matters affecting the ward, and has the right to petition the court for changes in the guardianship. The bill of rights also gives the ward the right to personal visits from the guardian or the guardian’s designee at least once every three months unless the court orders otherwise. See form 4-15 in this chapter.
Chapter 102 of the Texas Human Resources Code provides a “bill of rights” for elderly citizens. An elderly individual (age sixty or older) has all the rights, benefits, responsibilities, and privileges granted by the constitutions and laws of Texas and the United States, except where lawfully restricted, and the right to be free of interference, coercion, discrimination, and reprisal in exercising these civil rights. Tex. Hum. Res. Code §§ 102.001(5), 102.003(a). An elderly person’s expressly confirmed rights include the right to make his or her own choices regarding his or her personal affairs, care, benefits, and services; the right to be free from abuse, neglect, and exploitation; and the right to designate a guardian or representative to ensure the appropriate care is provided if a guardian is required. Tex. Hum. Res. Code § 102.003(b).
Although some of an elderly person’s rights can be modified or limited through the appointment of a guardian, others apparently may not. For example, an elderly individual has the right to be free from physical and mental abuse, including corporal punishment or physical or chemical restraints that are administered for the purpose of discipline or convenience and not required to treat the individual’s medical symptoms; stringent requirements are imposed for the use of such restraints. See Tex. Hum. Res. Code § 102.003(c). Additionally, an intellectually disabled elderly individual with a guardian of the person may participate in a behavior modification program that includes the use of restraints or adverse stimuli only with the informed consent of the guardian. Tex. Hum. Res. Code § 102.003(d).
If the ward must reside in a nursing home, the guardian should confirm that the facility respects the tenets of the elder bill of rights to the extent allowable considering the ward’s conditions and retained rights. Consult the website for the Attorney General of Texas at www.texasattorneygeneral.gov/consumer-protection/seniors-and-elderly for more information.
A services provider may not transfer or discharge an elderly person unless (1) the transfer is for the person’s welfare, and the person’s needs cannot be met by the services provider; (2) the person’s health is improved enough that services are no longer needed; (3) the health and safety of the person or someone else would be endangered if the transfer or discharge were not made; (4) the services provider stops operating or participating in the program that reimburses the services provider for the person’s treatment or care; or (5) the person fails, after reasonable and appropriate notices, to pay for services. Tex. Hum. Res. Code § 102.003(r).
Except in an emergency, an elderly person may not be transferred or discharged from a residential facility until the thirtieth day after the date the services provider gives written notice to the guardian (or required person). The written notice must state the intention of the services provider to transfer or discharge the elderly person, the reason for the transfer or discharge and its effective date, the location to which the person will be transferred, and the person’s right to appeal the action and the person to whom the appeal should be directed. Tex. Hum. Res. Code § 102.003(s).
Other important rights granted to the elderly are specified in the remaining portions of section 102.003 of the Human Resources Code.
§ 4.29:3Duty to Report Abuse, Neglect, or Exploitation of Elderly or Disabled Person
A person who becomes aware of any specific acts of abuse, neglect, or exploitation of an elderly (age sixty-five or older) or disabled person must report certain information to the Texas Department of Family and Protective Services or other appropriate agency. See Tex. Hum. Res. Code §§ 48.002(a)(1), 48.051(a), (b).
The duty to report applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, employee or member of a board that licenses or certifies a professional, and mental-health professional. Tex. Hum. Res. Code § 48.051(c). The duty to report clearly extends to a guardian.
The required report may be made orally or in writing and must include the name, age, and address of the elderly or disabled person; the name and address of any person responsible for the elderly or disabled person’s care; the nature and extent of the elderly or disabled person’s condition; the basis of the reporter’s knowledge; and any other relevant information. Tex. Hum. Res. Code § 48.051(d).
Failure to report the abuse, neglect, or exploitation is generally a class A misdemeanor, and knowingly or intentionally reporting information known to be false or unfounded is a class A misdemeanor. Tex. Hum. Res. Code §§ 48.052, 48.053.
Complaints about a nursing home or similar facility may be made to the Texas Health and Human Services Commission at 1-800-458-9858.
§ 4.29:4Duty to Report Abuse or Neglect of Child
A person who has reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person must immediately report certain information to the Texas Department of Family and Protective Services or other appropriate agency. See Tex. Fam. Code §§ 261.101(a), 261.103.
The duty to report applies without exception to an individual whose personal communications may otherwise be privileged and clearly extends to a guardian. See Tex. Fam. Code § 261.101(c). Special provisions relate to professionals. See Tex. Fam. Code § 261.101(b).
The report must include, if known, the name and address of the child; the name and address of the person responsible for the child’s care, custody, or welfare; and any other pertinent information about the abuse or neglect. Tex. Fam. Code § 261.104. Penalties are prescribed for failure to report and for reporting falsely. See Tex. Fam. Code §§ 261.107, 261.109.
Reports may be made at any time to the Department of Family and Protective Services on a twenty-four-hour toll-free number, 1-800-252-5400, or at the Department’s secure website, www.txabusehotline.org.
§ 4.29:5Injury to Elderly or Disabled Person or Child
It is a criminal offense for a person to “intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission” cause to a child, elderly person, or disabled person (1) serious bodily injury, (2) serious mental deficiency, impairment, or injury, or (3) bodily injury. Tex. Penal Code § 22.04(a).
For purposes of this provision, a child is a person fourteen years of age or younger, an elderly person is a person sixty-five years of age or older, and a disabled person is a person with one or more of the following: autism spectrum disorder, developmental disability, intellectual disability, severe emotional disturbance, or traumatic brain injury or who otherwise by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself. Tex. Penal Code § 22.04(c).
An omission that causes one of the described conditions constitutes an offense if the person has a legal or statutory duty to act or has assumed care, custody, or control of the child, elderly person, or disabled person. Tex. Penal Code § 22.04(b). For the purposes of such an omission, the person has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for the child, elderly person, or disabled person. Tex. Penal Code § 22.04(d). A guardian of the person of either a minor or adult incapacitated person would be subject to section 22.04 by having assumed the care, custody, or control of the ward through his appointment and qualification as guardian.
Depending on the type of injury and the mens rea, penalties may range from those for a first-degree felony to those for a state jail felony. See Tex. Penal Code § 22.04(e), (f), (g). Defenses and affirmative defenses are prescribed. See Tex. Penal Code § 22.04(i)–(m).
Similar provisions apply to persons connected with nursing homes and similar institutions who injure or exploit a child, elderly person, or disabled person by omission. See Tex. Penal Code § 22.04(a–1), (b), (d).
§ 4.29:6Reporting Financial Exploitation of Vulnerable Adults
A financial institution employee or securities professional must notify the institution, dealer, or investment advisor of suspected financial exploitation of a vulnerable adult (sixty-five years of age or older or disabled) who is an account holder. After receiving the notice, the financial institution must assess the suspected exploitation and submit a report to the Texas Department of Family and Protective Services (DFPS), and an investment advisor must submit a report to the DFPS and the Securities Commissioner. The financial institution or investment advisor must also notify a third party reasonably associated with the vulnerable adult of the exploitation, unless the third party is suspected of the exploitation. Tex. Fin. Code ch. 281. A financial institution may place a hold on any transaction that involves an account of a person over the age of sixty-five years or a person with a disability if the financial institution reports the suspected financial exploitation to the DFPS and has cause to believe the transaction is related to the suspected financial exploitation alleged in the report. The financial institution must place a hold on any transaction involving an account of a vulnerable adult if requested by the DFPS or a law enforcement agency. A hold placed on a transaction expires on the tenth business day after the date the hold is placed unless requested by a state or federal agency or a law enforcement agency investigating the suspected financial exploitation, in which case the financial institution may extend the hold for up to thirty additional days. The financial institution may petition a court to extend a hold. The court may extend or shorten a hold or provide other relief. Tex. Fin. Code § 281.004.
[Section 4.30 is reserved for expansion.]
II. Bond and Letters of Guardianship
§ 4.31Guardian’s Bond and Safekeeping of Assets
Guardian of Estate: A guardian of the estate must be bonded unless the guardian is a corporate fiduciary or a guardianship program operated by a county. Tex. Est. Code § 1105.101(a), (b). The amount is fixed by the judge based on evidence presented at the hearing on the guardianship application. Unless reduced by safekeeping accounts or cash deposits of the guardian’s own funds (see below), the bond amount must be equal to the estimated value of the ward’s personal property, together with an additional amount sufficient to cover all revenue expected to be derived during the next twelve months. Social Security payments and rental income may be excluded from this calculation. Tex. Est. Code §§ 1105.153, 1105.154. Under certain circumstances, the court may order that a new bond be executed or that the amount be increased or decreased. Tex. Est. Code §§ 1105.251–.257.
The bond amount may be reduced when assets belonging to the estate are subject to a court-approved safekeeping agreement. Tex. Est. Code § 1105.156. It will be generally more economical for the guardian to enter into a safekeeping agreement before the bond is initially set. The court can approve the safekeeping agreement at or after the time the order creating the guardianship is signed but before letters are issued. By approving the safekeeping agreement before letters are issued, there is no risk that the guardian will have access to assets that are not sufficiently bonded against. The guardian may also deposit his own cash or securities in lieu of a bond or to reduce the amount of the bond, although this procedure is rarely used. Tex. Est. Code § 1105.157(a). See section 7.2 and forms 7-6 through 7-8 in this manual.
The bond should be filed within twenty days after entry of the order granting letters of guardianship or before revocation of the letters for failure to qualify. Tex. Est. Code § 1105.003. The bond must be signed by the guardian and the guardian’s surety or sureties and, after court approval, filed with the clerk of the court. Tex. Est. Code §§ 1105.108, 1105.110. See form 4-16 in this chapter.
If personal sureties are used, there must be at least two, and each must own sufficient property within the state to qualify. Only one is required if it is an authorized corporate surety. Tex. Est. Code § 1105.160. However, if the bond exceeds $50,000, the court may require that it be signed by two or more authorized corporate sureties or by one corporate surety and two personal sureties. Tex. Est. Code § 1105.161. See form 4-17.
The attorney should determine local custom concerning personal sureties. Because of potential obstacles to collection and enforcement, guardianship courts generally discourage the use of personal sureties. Even if personal sureties are permitted, the court cannot consider a bond with individual or personal sureties until each prospective surety executes an affidavit that his assets reachable by creditors have a value in excess of his liabilities. The total net worth of the sureties must equal at least double the amount of the bond. The affidavits of the sureties must be presented to the court for consideration and, if approved, are attached to and made a part of the bond. Tex. Est. Code § 1105.201.
Guardian of Person: A guardian of the person only must be bonded unless the guardian is a corporate fiduciary or county guardianship program or is appointed pursuant to a will or written declaration made by a parent that expressly waives the guardian’s bond. Tex. Est. Code § 1105.101(a), (b), (c). The only kinds of bonds a court may accept for a guardian of the person are—
1.a corporate surety bond;
2.a personal surety bond;
3.a cash bond; or
4.a personal bond.
Tex. Est. Code § 1105.102(b). In determining the type and amount of the bond, the court will consider—
1.the familial relationship of the guardian to the ward;
2.the guardian’s ties to the community;
3.the guardian’s financial condition;
4.the guardian’s past history of compliance with the court; and
5.the reason the guardian may have previously been denied a corporate surety bond.
Letters of guardianship are issued by the clerk of the court to the person appointed guardian on the guardian’s qualification. Tex. Est. Code § 1106.001. The appointed guardian is deemed to have qualified on taking and filing the oath or declaration as required under Texas Estates Code section 1105.051 (see form 4-18 in this chapter), giving the required bond, filing the bond with the clerk, and having the bond approved by the court. If no bond is required, the guardian qualifies on taking the oath. Tex. Est. Code § 1105.002.
The certificate from the clerk of the court, under seal, stating the fact of the appointment, naming the guardian, and giving the date on which the guardian qualified and the expiration date is called the letters of guardianship. It is sufficient evidence of the appointment and qualification of the guardian for all purposes. Tex. Est. Code §§ 1106.001, 1106.005(a). Any number of duplicate letters of guardianship may be issued by the clerk if requested by the guardian. Tex. Est. Code § 1106.004.
§ 4.33Training and Qualification for Guardians
A court may not appoint a person as guardian if the person has not received training required under Texas Government Code section 155.204 absent a waiver by the court in accordance with rules to be adopted by the supreme court as prescribed by Government Code section 155.203. Tex. Est. Code § 1104.003. A verification of completion of the training and a copy of the person’s criminal history background checks are to be provided by the Judicial Branch Certification Commission (JBCC) to the probate court not later than the tenth day before the hearing to appoint a guardian. See Tex. Gov’t Code § 155.203. See also Judicial Branch Certification Commission, Guardianship Registration Rules and Resources, txcourts.gov/jbcc/register-a-guardianship/guardianship-registration-rules-and-resources/. This process does not apply to an attorney, a corporate fiduciary, or a private professional guardian, as the training is designed for family and other lay guardians. Tex. Gov’t Code § 155.202.
§ 4.34Registration of Guardianships and Guardianship Database
All guardianships are required to be registered in accordance with the mandatory registration program established by the supreme court in conjunction with the JBCC. Tex. Gov’t Code § 155.151. Additionally, the supreme court, in cooperation with the JBCC and courts with jurisdiction over guardianship proceedings, is required to maintain a central database of all guardianships subject to the jurisdiction of this state. Tex. Gov’t Code § 155.152. See also Judicial Branch Certification Commission, Guardianship Registration Rules and Resources, txcourts.gov/jbcc/register-a-guardianship/guardianship-registration-rules-and-resources/. The database must be accessible to the Department of Public Safety (DPS) for law enforcement purposes, and the DPS must make information from the database available, with certain restrictions, to law enforcement personnel through the Texas Law Enforcement Telecommunications System or a successor system of telecommunication used by law enforcement agencies and operated by the department. Tex. Gov’t Code § 155.153. Information that is contained in the database required under section 155.152, including personal identifying information of a guardian or ward, is confidential and not subject to disclosure under Code chapter 552 or any other law. Tex. Gov’t Code § 155.155(a). A law enforcement agency or officer that receives the information must maintain the confidentiality of the information. Tex. Gov’t Code § 155.155(b).