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TEXAS GUARDIANSHIP MANUAL


2022 Edition


Copyright Information

The State Bar of Texas, through its TexasBarBooks Department, publishes practice books prepared and edited by knowledgeable authors to give practicing lawyers and judges as much assistance as possible. The competence of the authors ensures outstanding professional products, but, of course, neither the State Bar of Texas, the editors, nor the authors make either express or implied warranties in regard to the use or freedom from error of this publication. In the use or modification of these materials, each lawyer must depend on his or her own expertise and knowledge of the law.

IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that (1) this written material was not intended or written by the author(s) to be used for the purpose of avoiding federal penalties that may be imposed on a taxpayer; (2) this written material cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer; (3) this written material cannot be used in promoting, marketing, or recommending to another party any tax-related transaction or matter; and (4) a taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.

The use of the masculine gender in parts of this manual is purely for literary convenience and should, of course, be understood to include the feminine gender as well.


ISBN (print): 978-1-956363-00-5

ISBN (digital download): 978-1-956363-01-2

ISBN (online): 978-1-956363-02-9

Library of Congress Control Number: 2022944991


© 1982, 2003, 2004, 2006, 2012, 2013, 2015, 2016, 2018, 2019, 2022 State Bar of Texas

Austin, Texas 78711


All rights reserved. Permission is hereby granted for the copying of any part of this publication by a photocopy or other similar process or by manual transcription, by or under the direction of licensed attorneys for use in the practice of law. No other use is permitted that will infringe the copyright without the express written consent of the State Bar of Texas.

Printed in the United States of America
2022 Edition



Manual Committee


Sarah Patel Pacheco, Chair


Judge Steve M. King, Judicial Liaison


W. Kevin Alter

Kathleen Tanner Beduze

Ray J. Black, Jr.

Hon. T. Christine Butts

Steven D. Fields

Terry W. Hammond

Brendan P. Harvell

Craig Hopper

Lisa H. Jamieson

R. Dyann McCully

Hon. Quentin McGown

Hon. Amy Parsons

Travis Weaver

Tara Zinn



State Bar of Texas


2022-2023


Laura Gibson, President

Chad Baruch, Chair of the Board

Dwight McDonald, Chair, Board Professional Development Subcommittee

Scott Rothenberg, Chair, Committee on Continuing Legal Education

Trey Apffel, Executive Director



TexasBarBooks



Sharon Sandle, Director

Elma E. Garcia, Senior and Project Publications Attorney

Sarah F. Henson, Publications Attorney

Susannah R. Mills, Publications Attorney

James W. Norman, Publications Attorney

Derek Smith, Publications Attorney

Michael Ambrose, Senior and Project Editor

Courtney Cavaliere, Editor

Roger Siebert, Editor

Edward Morgan, Operations Managerr

Travis Riddle, Production Supervisor

Jennifer Townsend, Production and Editorial Assistant

Cynthia Day, Meeting Coordinator

Lara Talkington, Marketing Coordinator

Kevin Henderson II, Website Manager

Jennifer Karlsson, Web Content Specialist

Jennifer Perez, Web Content Specialist

A'Naiya Davis, Web Content Strategist

Lenila Carreno, Accounting Specialist



Preface


The State Bar of Texas and the members of the manual committee are excited to publish the 2022 edition of the Texas Guardianship Manual. Since the first edition was published in 1982, Texas guardianship law has changed dramatically, making the need for an updated, user-friendly manual vital to Texas attorneys practicing in this area of the law. The goal of the manual remains the same—to provide an easily readable reference that addresses situations that commonly arise in a Texas guardianship practice.


The format of the manual should enable the attorney to quickly determine whether guardianship is necessary, whether there is a less restrictive alternative, the type of proceeding to be filed, and how to proceed once a particular type of guardianship or an appropriate alternative has been chosen. Since the appointment of an attorney ad litem is required in all guardianship proceedings, guidance has been provided on fulfilling that role. The fundamentals of guardianship proceedings are covered; however, the attorney must always be alert to unusual aspects of a particular case and refer to appropriate sources for answers to questions not addressed in this manual.


Members of the State Bar of Texas, several Texas judges, and the staff of the TexasBarBooks Department of the State Bar have contributed their expertise and a significant amount of time to the production and updating of this manual over the years. I must start by acknowledging James E. Brill, who invented the Texas Probate System—widely used by practitioners in this state—and who served as a consultant to the original Texas Guardianship Manual. Equal acknowledgment and appreciation is due Sharon B. Gardner, who chaired this committee from 1993 until 2010 and whose contributions are still reflected in the manual. Mr. Brill and Ms. Gardner set the standard for this and all future committees.


But each edition brings new committee members and their expertise. I sincerely appreciate the continued service of Steven D. Fields, Terry W. Hammond, Craig Hopper, Lisa H. Jamieson, Judge Steve M. King, Judge Amanda Torres, and Wesley E. Wright. Of particular note is The Honorable Steve M. King, presiding judge of Tarrant County Probate Court Number One.


Judge King continues to devote significant time and talent to this most recent edition. His experience, insights, and coordination of the various associate editors has been invaluable.


I want to recognize the newest committee members: Kathleen Beduze, Ray Black, Judge Christine Butts, Brendan Harvell, Dyann McCully, and Elisa Dillard Rainey. The generosity of these individuals in giving of their talents and time to the 2019 supplement is greatly appreciated.


But this and all the prior editions would not be possible without the hard work, encouragement, and sometimes prodding of the staff of the State Bar of Texas. It is impossible to give enough credit to Elma Garcia and the other members of the staff. From organizing meetings to legal research and writing, Elma and her team have provided support to the committee, and the manual is in great part a reflection of their hard work.


Finally, practitioners are encouraged to make sure they apprise themselves of statutory changes. The committee anticipates providing timely and useful updates to the manual; suggestions for inclusions or revisions are encouraged. They should be directed to the TexasBarBooks Department of the State Bar of Texas. It is the committee’s hope that the Texas Guardianship Manual will become a valuable tool for all Texas guardianship practitioners.


However, it is not intended to imply that certain suggested actions are practice standards or compulsory in all proceedings.


Sarah Patel Pacheco, Chair



License and Limited Warranty


Grant of license: The material in the digital product and in the documentation is copyrighted by the State Bar of Texas (“State Bar”). The State Bar grants you a nonexclusive license to use this material as long as you abide by the terms of this agreement.


Ownership: The State Bar retains title and ownership of the material in the digital files and in the documentation and all subsequent copies of the material regardless of the form or media in which or on which the original and other copies may exist. This license is not a sale of the material or any copy. The terms of this agreement apply to derivative works.


Permitted users: The material in these files is licensed to you for use by one lawyer and that lawyer’s support team only. At any given time, the material in these files may be installed only on the computers used by that lawyer and that lawyer’s support team. That lawyer may be the individual purchaser or the lawyer designated by the firm that purchased this product. You may not permit other lawyers to use this material unless you purchase additional licenses. Lawyers, law firms, and law firm librarians are specifically prohibited from distributing these materials to more than one lawyer. A separate license must be purchased for each lawyer who uses these materials. For information about special bulk discount pricing for law firms, please call 1-800-204-2222, ext. 1402, or 512-427-1402. Libraries not affiliated with firms may permit reading of this material by patrons of the library through installation on one or more computers owned by the library and on the library’s network but may not lend or sell the files themselves. The library may not allow patrons to print or copy any of this material in such a way as would infringe the State Bar’s copyright.


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The State Bar shall not be liable for the legal sufficiency or legal accuracy of any of the material contained in these files. Neither the State Bar nor any of the contributors to the material makes either express or implied warranties with regard to the use or freedom from error of the material. Each user is solely responsible for the legal effect of any use or modification of the material.


In no event shall the State Bar be liable for loss of profits or for indirect, special, consequential, or punitive damages, even if the State Bar has been advised of the possibility of those damages. The State Bar’s aggregate liability arising from or relating to this agreement or the material in the files or in the documentation is limited to the purchase price you paid for the licensed copyrighted product. This agreement defines your sole remedy.


General provisions: This agreement contains the entire agreement between you and the State Bar concerning the license to use the material in the files. The waiver of any breach of any provision of this agreement does not waive any other breach of that or any other provision. If any provision is for any reason found to be unenforceable, all other provisions nonetheless remain enforceable.



Introduction

The Texas Guardianship Manual, fourth edition, is more than a form book. It is a practice guide for attorneys in Texas who handle guardianship matters. The manual is organized by the logical sequence of events that would occur while following a matter from beginning to end. Each chapter contains a detailed table of contents; each contains practice notes concerning the topic of the chapter. The forms take up the greater part of most chapters. The uniform format of practice notes and forms is designed to enhance readability and ready reference and to accommodate easier word-processing use of the forms. Note that nothing in this manual is intended to suggest that the matters discussed are compulsory or set practice standards. Rather, this manual offers ideas based on a review of the current state of Texas law and recent cases and claims involving attorneys practicing in the guardianship area in Texas.

§ 1   Practice Notes

The practice notes are short synopses of the law, designed to serve as a primer to the very basic matters involved in a particular chapter. These notes are, at most, black-letter law and do not try to resolve questions in controversial areas. For the attorney experienced with guardianship mat­ters, these notes should serve as a reminder of some of the basics; for the attorney not so expe­rienced, they should provide an orientation to the major matters with which the attorney needs to be concerned when contemplating a particular cause of action.

Although the notes are not intended as a treatise on guardianship matters, they contain much important information that must be understood before the forms may be used responsibly.

§ 2   Forms

The forms (except those promulgated by gov­ernmental agencies) were prepared by members of a committee of experts in the guardianship field, and great care has gone into their prepara­tion. The forms represent the best thinking of the practicing attorneys on the committee. Perfec­tion is hard to achieve, however, and each attor­ney using these materials must depend on his or her own expertise and knowledge of the law; there is no substitute in a particular case for the legal mind. Thus, care should be taken to ensure that any form used fits the case and treats the problems of that case.

1.Optional content

Within major sections of the text of forms, optional paragraphs or items are usually identi­fied by boxed instructions. Because the manual can cover only relatively common guardianship situations, language needed to address an atypi­cal issue in a particular case may not appear in the form. The user must take care both to elimi­nate language appearing in the form that is not appropriate for the particular case and to add any language needed for the particular case that does not appear in the form.

2.Typeface conventions

Two typefaces are used in the forms. Material in Times Roman (like most of this page) is appro­priate for inclusion in a finished form. In con­trast, Arial type is used for boxed instructions. When Arial type is used within the form itself (rather than in a box), it appears in boldface for emphasis.

3.Bracketed material

Several types of bracketed material appear in the forms.

Choice of terms.      In a bracketed statement such as “[he/she],” the user must choose between the terms or phrases within the brackets. The choices are separated by forward slash marks.

Optional words.      In a phrase such as “Ward [and his estate],” the user must determine whether to include the phrase “and his estate.”

Substitution of terms.      In a bracketed statement such as “[name of ward],” the user is to substi­tute the name of the ward rather than typing the bracketed material verbatim.

Instructions for use.      Material such as “[include if applicable: . . . ]” and “[set out venue facts]” provides instructions for completing the finished form and should not be typed verbatim in the document. Bracketed instructions at the begin­ning of almost all the forms refer the user to sec­tion 3 of this introduction for instructions about composing the caption of the form.

Subtitles.      The titles of some forms are fol­lowed by a bracketed subtitle that is not to be typed as part of the form title. In the title “Proof of Facts [Minor],” for example, the bracketed word simply distinguishes the form from another similarly titled form in the same chapter for ease of reference.

4.Blank lines

Signature lines appear as blank lines. Spaces for dates, times, and amounts that would be filled in after the document is prepared also appear as blank lines. (If an actual date, time, or amount should be inserted in the form when it is pre­pared, “[date],” “[time],” or “$[amount]” appears instead.)

5.Language in boxes

Language in boxes is not to be included in the finished document but constitutes instructions, usually either telling the user whether to use the form language following the box, describing what information should be included at that point in the finished document or attached to it, or providing cautionary reminders about use of the form language.

6.Form numbers

Forms are numbered in sequence within each chapter. All forms begin with the number of the chapter, which is followed by a hyphen and the number of the form within the chapter. This sys­tem is used to permit future expansion of any chapter without requiring the rearrangement of the entire book.

7.Captions

An example of the caption that should precede the form title is not reprinted in most of the forms that require it. Typical case styles are dis­cussed in section 3 below.

8.Online Subscription

The online subscription version of the Texas Guardianship Manual contains the entire text of the manual and is searchable and hyperlinked to allow for easy, rapid navigation to topics of interest. Also included are electronic versions of all State Bar of Texas–copyrighted forms from the manual as editable Word files as well as printable or downloadable PDF files of selected forms available from various agencies, linked from the online subscription web pages for easy retrieval.

Applicable Texas and federal case and statute citations in the practice notes and forms instruc­tions are linked to case reports and main code sections cited via Casemaker online.

Caveat:      Note that the word-processing forms included in the online subscription contain instructional language as hidden text. Be aware that this language will be included in your com­pleted forms unless you specifically delete it.

§ 3   Captions of Forms

1.Court designations for caption of petition

Although no statute or rule prescribes the form for identifying in the caption the state court in which the petition is filed, the court and county should be named. If one of several courts may hear the case, as in counties with several district courts and county courts at law, the caption should have a blank on which the clerk can write the appropriate number when the petition is filed. The court designations set out below are recommended for captions.

District Court

IN THE DISTRICT COURT OF __________ COUNTY, TEXAS__________ JUDICIAL DISTRICT

Constitutional County Court

IN THE COUNTY COURTOF __________ COUNTY, TEXAS

Unnumbered County Court at Law

IN THE COUNTY COURT AT LAWOF __________ COUNTY, TEXAS

Numbered County Court at Law

IN THE COUNTY COURT AT LAWNUMBER _____ OF_________ COUNTY, TEXAS

2.Appearance of caption

The generally accepted appearance for captions in Texas pleadings has the cause number at the top center of the first page, the parties on the left, the court designation on the right, and a dividing line between the two, as set out below. Some counties may reverse the appearance of the court and cause number.

No. 00-12345

PAUL PAYNE   §   IN THE DISTRICT COURT

Plaintiff   §

   §   OF TRAVIS COUNTY, TEXAS

v.   §

   §

DON DAVIS   §

Defendant   §   345th JUDICIAL DISTRICT

§ 4   Page Numbers

Page numbers are consecutive for both practice notes and forms within each chapter. Practice notes begin with the number of the chapter, fol­lowed by the number of the page within the chapter. Forms begin with the number of the form, followed by the number of the page within the form. This system is used to permit revisions within any chapter without renumbering the pages in the remaining chapters.

§ 5   Corrections and Updates

In drafting the manual, the members of the com­mittee devoted a great deal of effort to making it error free, but it undoubtedly contains some errors. We would appreciate your pointing out any errors you find in the manual, as well as any revisions you believe are advisable. Please mail any corrections or suggestions to the following address:

Director, TexasBarBooks

State Bar of Texas

P.O. Box 12487

Austin, Texas 78711-2487

books@texasbar.com

Periodic updating of the manual is planned to reflect changes in the law. It is also expected that, over time, additional topics will be covered and the scope of coverage of existing topics will be expanded. We welcome your suggestions about new topics that you would find helpful. Please send your suggestions to the address shown above.