Modification, Restoration, and Successor Guardians
Guardianships are not stagnant, and the continued appointment of a guardian is not a certainty. Once created, most guardianships and guardians are subject to continued review and oversight. Tex. Est. Code ch. 1201; but see Tex. Est. Code § 1201.051 (does not apply to guardianship created only to receive funds from governmental sources). At least annually, a guardianship should be reviewed to determine if it should be continued, modified, or terminated. Tex. Est. Code § 1201.002. The obligation of review is both on the overseeing court and the guardian. In addition, a ward or any person interested in the ward’s welfare may ask the court to modify a guardianship and expand or limit a guardian’s powers or to terminate the guardianship entirely, based on a change to the ward’s incapacity. Tex. Est. Code §§ 1202.051, 1202.054. Finally, when a guardian resigns, is removed, or dies, a successor guardian may be appointed. Tex. Est. Code § 1203.102. This chapter is intended to provide an overview of the current law and practical tips relating to the changes in the scope of a guardianship or the appointed guardian after the initial hearing.
§ 9.2Annual Review Regarding Continuation
All guardianships created after September 1, 1993, must be reviewed annually to determine if they should be continued, modified, or terminated, unless such guardianships were created only for the purpose of having the guardian receive government funds. Tex. Est. Code § 1201.052. The court is required to make its determination in writing and to file it with the clerk. Tex. Est. Code § 1201.054.
Practice Pointer: This provision appears fairly innocuous but is very powerful. Because the standards for the court are somewhat of a blank slate (discretionary), this provision could be employed in a number of creative ways. Even though the procedure and standards for modification under Texas Estates Code chapter 1202 are fairly restrictive (see sections 9.3–9.3:7 below), the annual determination under section 1201.054 contains no such procedural restrictions.
Review by Statutory Probate Courts: If the guardianship is pending in a statutory probate court, the judge may review (1) the reports of the court investigator, guardian ad litem, or court visitors; (2) the annual accounting of the guardian of the estate, or the annual report of the guardian of the person; or (3) conduct a hearing. Tex. Est. Code § 1201.053(a).
Review by Nonstatutory Probate Courts: If the guardianship is not in a statutory probate court, the judge may use any appropriate method to make the review. Tex. Est. Code § 1201.053(b).
Important Note: A person (including a ward or any person interested in the ward’s welfare) may not reapply for complete restoration of a ward’s capacity or a modification of a ward’s guardianship before the first anniversary of the date of the hearing on the last preceding application, except as otherwise provided by the court on good cause shown by the applicant. Tex. Est. Code § 1202.055. This provision is consistent with the annual review for guardianships and is designed to eliminate unnecessary or burdensome repetition before the court.
The ward or any person interested in the ward’s welfare may petition the court for an order of modification. Tex. Est. Code § 1202.051(a). This includes both expanding or limiting a guardian’s powers and duties because of a change in the ward’s incapacity (i.e., further deterioration or partial restoration). Texas Estates Code chapter 1202 addresses the standards and procedures for modification of a guardianship. Tex. Est. Code § 1202.051(a)(2)–(3). See forms 9-1 through 9-4 in this chapter.
Generally, a ward or any person interested in the ward’s welfare must file a written application with the court. Tex. Est. Code § 1202.051(a)(2), (a)(3). The application must be sworn to and include—
1.the ward’s name, sex, date of birth, and address;
2.the name and address of any person serving as guardian of the person of the ward on the date the application is filed;
3.the name and address of any person serving as guardian of the estate of the ward on the date the application is filed;
4.the nature and description of the ward’s guardianship;
5.the specific areas of protection and assistance and any limitation of rights that exist;
6.a general description of the increased or decreased powers sought by the guardian or the ward and general facts and evidence supporting a modification, including—
a.the nature and degree of the ward’s incapacity;
b.the specific areas of protection and assistance to be provided to the ward and requested to be included in the court’s order; and
c.any limitation of the ward’s rights requested to be included in the court’s order;
7.the approximate value and description of the ward’s property, including any compensation, pension, insurance, or allowance to which the ward is or may be entitled; and
8.if the ward is sixty years of age or older, the names and addresses, to the best of the applicant’s knowledge, of the ward’s spouse, siblings, and children or, if there is no known spouse, sibling, or child, the names and addresses of the ward’s next of kin.
It is also advisable to attach a physician’s certificate or letter supporting the requested modification. See Tex. Est. Code § 1202.152; see also section 9.3:6 below.
An application to modify must be served on the guardian and the ward, if the ward is not the applicant. Tex. Est. Code § 1202.053.
A ward may also request modification by informal letter to the court. Tex. Est. Code § 1202.054(a). On receipt of a ward’s informal request, the court must appoint a court investigator or guardian ad litem to determine if modification is necessary. Tex. Est. Code § 1202.054(b). The court investigator or guardian ad litem is required to file a report with the court containing findings and conclusions. If the court investigator or guardian ad litem determines that it is in the best interest of the ward for the guardianship to be modified, then he is required to file an application under Texas Estates Code sections 1202.051 and 1202.052. Tex. Est. Code § 1202.054(c). See section 9.3:1 above.
Importantly, it should be noted that any person found to have knowingly interfered with the transmission of a request for modification by informal letter to the court may be adjudged guilty of contempt of court. Tex. Est. Code § 1202.054(a).
In addition to modifying a guardianship under chapter 1202, courts may modify a guardianship under the provisions of three laws passed in 1997. See Acts 1997, 75th Leg., R.S., ch. 77, § 10 (S.B. 997); Acts 1997, 75th Leg., R.S., ch. 434, § 2 (H.B. 1316); Acts 1997, 75th Leg., R.S., ch. 1403, § 6 (H.B. 2189). These laws allow a court to modify an older guardianship to conform to statutory amendments affecting guardianships filed after September 1, 1997. The 1997 amendments do not apply retroactively to a guardianship created before September 1, 1997, unless a court modifies the older, pre-1997 guardianship. Thus, these sections can be made applicable by such a modification.
Practice Pointer: Many of the provisions in these acts would have little or no effect on guardianships created before 1997; however, several provisions could benefit these older guardianships. These acts permit the probate court on its own motion to modify all such guardianships under its supervision. The attorney should check with the court in which the guardianship is pending to see if such an order has been entered.
The court must appoint an attorney ad litem in every modification proceeding. Tex. Est. Code § 1202.101. The attorney ad litem is entitled to reasonable compensation for his services, regardless of whether the proceeding results in modification. Tex. Est. Code § 1202.102.
In addition, the ward has the right to retain private counsel to represent him in seeking the restoration of certain of his rights or modification of his guardianship. Tex. Est. Code § 1202.103(a). But a private attorney’s compensation is not guaranteed as the “court may order that compensation for services provided by an attorney retained under this section be paid from funds in the ward’s estate only if the court finds that the attorney had a good faith belief that the ward had the capacity necessary to retain the attorney’s services.” Tex. Est. Code § 1202.103(b) (emphasis added). Further, the guardian or any other person interested in the ward’s welfare may challenge the authority of counsel to represent the ward in such a proceeding by filing a motion under rule 12 of the Texas Rules of Civil Procedure. See Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964) (rule 12 exclusive means to challenge authority); Gulf Regional Education Television Affiliates v. University of Houston, 746 S.W.2d 803, 809 (Tex. App.—Houston [14th Dist.] 1988, writ denied); Valley International Properties, Inc. v. Brownsville Savings & Loan Ass’n, 581 S.W.2d 222, 226 (Tex. App.—Corpus Christi–Edinburg 1979, no writ).
Practice Pointer: The right to represent a ward is not absolute. Therefore, an attorney who is considering representing a ward should use reasonable means to confirm the incapacitated person has the requisite capacity to retain counsel. This is particularly an issue in a modification proceeding as the ward’s ability to contract is often one of the last powers to be restored. The attorney should personally meet with the ward to determine whether the ward appears to be acting independently; understands that he is seeking to retain the attorney to represent him; is generally oriented to time, place, and person; and understands the basic financial arrangement and resulting obligations. If the court has appointed an attorney ad litem for the ward, the attorney should seek permission to visit with the ward from his court-appointed counsel. Furthermore, it is strongly advisable to seek the opinion of the ward’s physician or a doctor qualified to render a medical opinion regarding the ward’s capacity to enter into a contract before agreeing to represent the ward. If possible, the doctor should reduce his opinion to writing.
§ 9.3:6Hearing and Proof Required
The party filing the application to modify has the burden of proof at the hearing. Tex. Est. Code § 1202.151(b). At the hearing, the court is required to consider only evidence regarding the ward’s mental or physical capacity at the time of the hearing that is relevant to the modification of the ward’s guardianship. Tex. Est. Code § 1202.151(a).
As with the original granting of the guardianship (in proceedings since 1994), a physician’s letter or certificate, in similar form to that required under Texas Estates Code section 1101.103, is required for a modification of the guardianship. Tex. Est. Code § 1202.152(a). Importantly, the court may appoint a physician to examine the ward to determine if modification is in the best interests of the ward in the same manner and to the same extent as the original guardianship. Tex. Est. Code § 1202.152(c); see also Tex. Est. Code § 1101.103(c)–(d).
To grant the application to modify, the court must find by a preponderance of the evidence that the current nature and degree of the ward’s incapacity warrant modification. Tex. Est. Code § 1202.153(b)–(c).
The court is permitted to make a broad range of findings when presented with an application to modify a guardianship. It can expand or restrict the rights and powers of both the guardian and the ward to the extent necessary to accomplish the continuing objectives of the guardianship. Tex. Est. Code §§ 1202.153–.156. See forms 9-1 through 9-4 in this chapter.
If the court modifies the guardian’s powers or duties, the order must include—
1.the guardian’s name;
2.the ward’s name;
3.the type of guardianship being modified (person, estate, or both);
4.the specific powers, limitations, or duties of the guardian and the new specific areas of protection and assistance to be provided to the ward;
5.if the ward’s incapacity resulted from a mental condition, a statement whether the ward retains the right to vote and make personal decisions regarding residence;
6.if applicable, any necessary supports and services for the modification of the guardianship; and
7.a direction that the clerk must issue modified letters of guardianship to conform to the order.
Tex. Est. Code §§ 1202.154, 1202.156.
If the court determines not to modify the guardianship, the application is to be dismissed and an order entered to that effect. Tex. Est. Code § 1202.157.
The ward or any person interested in the ward’s welfare may petition the court for an order of “complete” restoration of capacity and the settlement and closing of the guardianship. Tex. Est. Code § 1202.051(a)(1). This procedure is not to be confused with a modification of a guardianship because of a “partial” restoration of capacity, which is addressed at sections 9.3–9.3:7 above, although the standards and procedures are generally the same. Texas Estates Code chapter 1202 addresses the standards and procedures for a complete restoration of a ward’s capacity. See forms 9-5 and 9-6 in this chapter.
As with a modification proceeding, a ward or any person interested in the ward’s welfare must generally file a written application with the court. Tex. Est. Code § 1202.051(a)(1). The application must be sworn to and include—
1.the ward’s name, sex, date of birth, and address;
2.the name and address of any person serving as guardian of the person or estate of the ward on the date the application is filed;
3.the nature and description of the ward’s guardianship;
4.the specific areas of protection and assistance and any limitation of rights that exist;
5.a statement seeking a restoration of the ward’s capacity because the ward is no longer an incapacitated person;
6.the approximate value and description of the ward’s property, including any compensation, pension, insurance, or allowance to which the ward is or may be entitled; and
7.if the ward is sixty years of age or older, the names and addresses, to the best of the applicant’s knowledge, of the ward’s spouse, siblings, and children or, if there is no known spouse, sibling, or child, the names and addresses of the ward’s next of kin.
It is also advisable to attach a physician’s certificate or letter finding that the ward has capacity and that all rights should be restored. See Tex. Est. Code § 1202.152; see also section 9.4:5 below.
An application to restore the capacity of a ward must be served on the guardian and the ward, if the ward is not the applicant. Tex. Est. Code § 1202.053.
A ward may also request complete restoration of capacity by informal letter to the court. Tex. Est. Code § 1202.054(a). On receipt of a ward’s informal request, the court must appoint a court investigator or guardian ad litem to determine whether the ward is no longer incapacitated. Tex. Est. Code § 1202.054(b). The court investigator or guardian ad litem is required to file a report with the court containing findings and conclusions. If the court investigator or guardian ad litem determines that it is in the best interest of the ward for the guardianship to be terminated, then he is required to file an application under Texas Estate Code sections 1202.051 and 1202.052. Tex. Est. Code § 1202.054(c). See section 9.4:1 above.
Importantly, it should be noted that any person found to have knowingly interfered with the transmission of a request for restoration of capacity by informal letter to the court may be adjudged guilty of contempt of court. Tex. Est. Code § 1202.054(a).
The court must appoint an attorney ad litem in every proceeding to restore a ward’s capacity. Tex. Est. Code § 1202.101. The attorney ad litem is entitled to reasonable compensation for his services, regardless of whether the proceeding results in the restoration of the ward’s capacity. Tex. Est. Code § 1202.102.
In addition, the ward has the right to retain private counsel to represent him in seeking the restoration of his capacity. Tex. Est. Code § 1202.103(a). But a private attorney’s compensation is not guaranteed as the court “may order that compensation for services provided by an attorney retained under this section be paid from funds in the ward’s estate only if the court finds that the attorney had a good faith belief that the ward had the capacity necessary to retain the attorney’s services.” Tex. Est. Code § 1202.103(b) (emphasis added). Further, the guardian or any other person interested in the ward’s welfare may challenge the authority of counsel to represent the ward in such a proceeding by filing a motion under rule 12 of the Texas Rules of Civil Procedure. See Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964) (rule 12 exclusive means to challenge authority); Gulf Regional Education Television Affiliates v. University of Houston, 746 S.W.2d 803, 809 (Tex. App.—Houston [14th Dist.] 1988, writ denied); Valley International Properties, Inc. v. Brownsville Savings & Loan Ass’n, 581 S.W.2d 222, 226 (Tex. App.—Corpus Christi–Edinburg 1979, no writ).
Practice Pointer: The right to represent a ward is not absolute. Therefore, an attorney who is considering representing a ward should use reasonable means to confirm the incapacitated person has the requisite capacity to retain counsel. This is particularly an issue in a proceeding to restore a ward’s capacity. The attorney should personally meet with the ward to determine whether the ward appears to be acting independently; understands that he is seeking to retain the attorney to represent him; is generally oriented to time, place, and person; and understands the basic financial arrangement and resulting obligations. If the court has appointed an attorney ad litem for the ward, the attorney should seek permission to visit with the ward from his court-appointed counsel. Furthermore, it is strongly advisable to seek the opinion of the ward’s physician or a doctor qualified to render a medical opinion regarding the ward’s capacity to enter into a contract before agreeing to represent the ward. If possible, the doctor should reduce his opinion to writing.
§ 9.4:5Hearing and Proof Required
The party filing the application to restore the ward’s capacity has the burden of proof at the hearing. Tex. Est. Code § 1202.151(b). At the hearing, the court is required to consider only evidence regarding the ward’s mental or physical capacity at the time of the hearing that is relevant to the complete restoration of the ward’s capacity. Tex. Est. Code § 1202.151(a).
As with the original granting of the guardianship (in proceedings since 1994), a physician’s letter or certificate, in similar form to that required under Texas Estates Code section 1101.103, is required for complete restoration of a ward’s capacity. Tex. Est. Code § 1202.152(a). Importantly, the court may appoint a physician to examine the ward to determine if complete restoration of the ward’s capacity is in the best interests of the ward in the same manner and to the same extent as the original guardianship. Tex. Est. Code § 1202.152(c); see also Tex. Est. Code § 1101.103(c)–(d).
To grant the application for restoration, the court must find by a preponderance of the evidence that the ward is no longer incapacitated. Tex. Est. Code § 1202.153(a).
If the court decides to terminate the guardianship, the order restoring the ward must state—
1.the guardian’s name;
2.the ward’s name;
3.the type of guardianship being terminated (person, estate, or both);
4.that the ward is no longer an incapacitated person;
5.that there is no longer a need for a guardianship of the person or estate;
6.that the ward’s mental capacity is completely restored;
7.that the guardian is required to immediately settle and close the guardianship and deliver all of the remaining guardianship estate to the ward; and
8.that when the guardianship is finally settled and closed, the clerk is to revoke all letters of guardianship.
If applicable, the order must also state any necessary supports and services for the restoration of the ward’s capacity. Tex. Est. Code §§ 1202.154–.155.
If the court determines not to restore the ward’s capacity, the application is to be dismissed and an order entered to that effect. Tex. Est. Code § 1202.157.
§ 9.4:7Removal of Firearm Disability upon Restoration
A person whose guardianship was terminated because of a restoration of capacity may file an application with the guardianship court for an order requesting the removal of the person’s disability to purchase a firearm imposed under 18 U.S.C. § 922(g)(4). Tex. Est. Code § 1202.201(a). In addition, in a proceeding involving an application to restore a ward’s capacity, the applicant can request an order seeking the same relief. Tex. Est. Code § 1202.201(b). In determining whether to grant relief, the court must hear and consider evidence about—
1.the circumstances that led to imposition of the firearm disability,
2.the person’s mental history,
3.the person’s criminal history, and
4.the person’s reputation.
The court may not grant relief under this section unless the court makes and enters in the record the following affirmative findings:
1.the person or ward is no longer likely to act in a manner dangerous to public safety, and
2.removing the person’s or ward’s disability to purchase a firearm is in the public interest.
Tex. Est. Code § 1202.201(c)–(d).
§ 9.5Appointment of Successor Guardian
When there is a vacancy in the position of guardian because of the guardian’s resignation, removal, or death, there typically is a need for further administration necessitating the appointment of a successor guardian. Additionally, there may be other circumstances that necessitate the removal of the guardian and appointment of a successor, not for any cause or error of the former but because of a higher right for appointment of the successor. The procedures for appointing successor guardians are generally included in Tex. Est. Code §§ 1203.101–.153. See forms 9-7 and 9-8 in this chapter.
§ 9.5:1Resignation, Removal, or Death; Immediate Appointment
In the case of the resignation, removal, or death of a guardian, the court may, on application and on service of notice “as directed by the court,” appoint a successor guardian.Tex. Est. Code § 1203.102(a). However, citation and notice are not required if the court finds that the immediate appointment of a successor guardian is necessary. Tex. Est. Code § 1203.102(a)–(b). The court can appoint a successor guardian as part of its final order in a resignation or removal proceeding, or after being informed of the death of the guardian, with or without an application having been filed requesting the appointment of a successor guardian. Subject to an order of the court, the successor guardian appointed immediately has the same rights and powers of the former guardian. Tex. Est. Code § 1203.102(b). The immediate appointment, however, does not preclude an interested person from filing an application to be appointed successor guardian, and, upon hearing, the court may set aside the immediate appointment and appoint a qualified applicant as successor guardian in accordance with Texas Estates Code chapter 1104. Tex. Est. Code § 1203.102(c). If the immediate appointment is set aside, the court may require the successor guardian to prepare and file a verified accounting. Tex. Est. Code § 1203.102(d).
The Estates Code does not specifically address the need for additional citation when an interested person files an application to be appointed successor guardian after a resignation, removal, or death has occurred. In practice, most courts require citation by posting or some other form of service based on the holding of Torres v. Ramon, 5 S.W.3d 780 (Tex. App.—San Antonio 1999, no pet.). In Torres, the court held that proper citation of each party’s respective application for guardianship was necessary for the trial court to have jurisdiction to consider that party’s application even though the Estates Code appears to require only service of the original (first) application for the appointment of a guardian. Because the cross-applicant did not perfect personal and other service of his application, the appellate court in Torres held that the trial court lacked jurisdiction to hear the cross-application for guardianship. In other words, the citation of the original application by another party did not grant the court jurisdiction over the cross-application. Torres, 5 S.W.3d at 782 n.1.
Practice Pointer: Notwithstanding the jurisdiction requirement, courts are also required to make a reasonable effort to consider the ward’s preference about the person to be appointed guardian. See Tex. Est. Code § 1104.002. Therefore, some notice of the appointment of a successor, the appointment of a guardian ad litem, or a visit from a court investigator may be necessary to comply with the preference requirements set forth in the Estates Code. It is advisable to check with court staff to determine each court’s procedures for appointing a successor guardian. Some courts allow the appointment by submission, others require a hearing, and all vary as to their notice requirements.
A guardian who desires to resign is required to file a written application with the court. Tex. Est. Code § 1203.001. The guardian of the ward’s estate is required to accompany his application with a verified exhibit and final account showing the true condition of the guardianship entrusted to the guardian’s care. Tex. Est. Code § 1203.001(1). The guardian of the ward’s person is required to accompany his application with a verified report containing the required information under Texas Estates Code section 1163.101 showing the condition of the ward entrusted to the guardian’s care. Tex. Est. Code § 1203.001(2). See form 9-9 in this chapter.
If the necessity exists, the court may immediately accept the resignation and appoint a successor guardian as provided by Estates Code section 1203.102(b). Tex. Est. Code § 1203.002(a); see also section 9.5:1 above. However, the court may not discharge a guardian of the estate or release him or the sureties on his bond until the court approves his final accounting. Tex. Est. Code § 1203.002(b); see also Tex. Est. Code § 1203.006(a).
The court is required to set a hearing date and time on the application to resign at which interested persons may appear and contest the exhibit and final account or report of the guardian supporting the application. Tex. Est. Code § 1203.004(a)–(b). Citation for the hearing is required to be served on all interested persons by posting unless the court directs that citation be published. Tex. Est. Code § 1203.004(c).
At the hearing, if the court is satisfied that all matters entrusted to the guardian applying to resign have been handled and accounted for in accordance with law, the court shall enter an order approving the exhibit and final account or report and requiring that the guardian turn over all estate property. Tex. Est. Code § 1203.005(b). The guardian of the person is required to comply with all court orders concerning the ward. Tex. Est. Code § 1203.005(c). The court will not enter an order accepting the resignation and discharging the guardian and the sureties on his bond, if any, until the guardian has fully complied with the court’s orders. Tex. Est. Code § 1203.006(b). Thus, the order approving the final account should include language that discharges the guardian upon the filing of a certificate of compliance, or the guardian should file a certificate of compliance and seek entry of a separate order accepting his resignation and discharging him. See form 9-10.
Texas Estates Codes sections 1203.051 and 1203.052 provide for the removal of a guardian by the court or at the request of an interested person, with or without notice to and service of citation on the guardian, depending on the circumstances requiring the removal.
A guardian may be removed without notice if the guardian—
1.fails to qualify;
2.fails to timely file an inventory;
3.fails to timely give a new bond;
4.is absent from the state for three months at one time without court permission or removes from the state;
5.cannot be served, evades service, cannot be found, or is a nonresident of the state without a resident agent to accept service;
6.neglects to educate or maintain the ward as liberally as the ward’s means and the condition of the ward’s estate permit;
7.misapplies, embezzles, or removes from the state estate assets or is about to do any of these acts; or
8.engages in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Texas Human Resources Code section 48.002.
Tex. Est. Code § 1203.051(a). Removal without notice for the last two reasons must be found on the basis of clear and convincing evidence given under oath. Tex. Est. Code § 1203.056(a).
A guardian may be removed with notice if—
1.sufficient grounds appear to support the belief that the guardian has misapplied, embezzled, or removed property committed to the guardian’s care from the state or is about to do so;
2.the guardian fails to file any account or report required by law;
3.the guardian fails to obey court orders with respect to the guardian’s duties;
4.the guardian is proved to be guilty of gross misconduct or gross mismanagement in the performance of the guardian’s duties;
5.the guardian becomes incapacitated, is sentenced to the penitentiary, or is otherwise incapable of performing the guardian’s duties;
6.the guardian engages in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Texas Human Resources Code section 48.002;
7.the guardian neglects to educate or maintain the ward to the extent that the ward’s estate and the ward’s ability or condition permit;
8.the guardian interferes with the ward’s progress or participation in community programs;
9.the guardian, if a private professional guardian, fails to be certified as required by subchapter G, chapter 1104, of the Estates Code;
10.the court determines that, because of the dissolution of the joint guardians’ marriage, the termination of the guardians’ joint appointment and the continuation of only one of the joint guardians as the sole guardian is in the best interest of the ward; or
11.the guardian would be ineligible for appointment under subchapter H, chapter 1104, of the Estates Code.
If the necessity exists, the court may immediately appoint a successor guardian following removal of the guardian as provided by Estates Code section 1203.102(b). Tex. Est. Code § 1203.054; see also section 9.5:1 above. The court may not discharge the removed guardian of the estate or release him or the sureties on his bond until the court approves his final accounting. Tex. Est. Code § 1203.054. But the court can order the removed guardian to immediately turn over the ward’s estate to the successor guardian. Tex. Est. Code § 1203.055.
Texas Estates Code section 1203.102 provides for the appointment of a successor guardian when the former guardian dies, if the guardianship needs to be continued. See Tex. Est. Code § 1203.102(a). See form 9-7 in this chapter.
The personal representative of the deceased guardian, at the time and in the manner ordered by the court, is required to account for, pay, and deliver all guardianship property entrusted to the representative’s care to a successor guardian or other person entitled to receive it. Tex. Est. Code § 1203.102(a). Accordingly, citation on the deceased guardian’s personal representative is required.
§ 9.5:5Other Circumstances Requiring Appointment
The Texas Estates Code addresses five additional circumstances when a successor guardian may be appointed without the resignation, removal, or death of the currently serving guardian. Tex. Est. Code §§ 1203.103–.107. In such circumstances, the prior guardian’s letters are revoked, and the successor is appointed. These include the following:
1.When the person seeking such appointment has a prior right to serve in such capacity and has not waived that right. Tex. Est. Code § 1203.103.
2.When the person seeking appointment was named in the will to serve but was a minor at the time the will was probated and has now become an adult. Tex. Est. Code § 1203.104.
3.When the person seeking appointment was named in the will to serve but was sick or absent from the state when the will was probated. Tex. Est. Code § 1203.105.
4.When the person seeking appointment was named in the will to serve and the will was not discovered until after the currently serving guardian was appointed. Tex. Est. Code § 1203.106.
5.When the person seeking appointment was a spouse, parent, or child of the proposed ward who was previously disqualified from serving because of a litigation conflict under Estates Code section 1104.354(1) and the conflict has been removed and the person is now qualified to serve. Tex. Est. Code § 1203.107.
The court may revoke letters of guardianship and grant other letters as described in the above five circumstances only (1) upon application and (2) after personal service of citation on the person whose letters are sought to be revoked requiring the person to appear and show cause why the application should not be granted. Tex. Est. Code § 1203.101. See form 9-8 in this chapter. Under these provisions, the guardian is not immediately removed, and his powers to act over the ward and his estate are considered valid pending the court’s determination that the applicant’s right is in fact superior. If a prior right to act as guardian is shown to exist, the previously appointed guardian must relinquish control of the ward and his estate, the letters of the previously appointed guardian will be revoked, and letters will be granted to the applicant who exhibits the prior right. Because the powers of the prior guardian terminate when the court signs an order appointing a successor and revoking the prior letters of guardianship, the court should also order an immediate turnover of assets to the successor on the successor’s qualification.
§ 9.5:6Order Appointing Successor Guardian
The Texas Estates Code does not mandate any particular form, findings, or statements that must be in an order appointing a successor guardian. The appointment of a successor guardian may be, and often is, included as part of the court’s order relating to the former guardian (i.e., resignation or removal). But the appointment can also be made by separate order. It is suggested, however, that the order appointing the successor guardian include similar findings and statements as the order appointing the original guardian. See form 9-11 in this chapter. Thus, the order should include the following:
1.that the court continues to have jurisdiction and venue;
2.the name of the ward;
3.whether the ward was represented by an ad litem (if not, the order should confirm that an ad litem was not necessary);
4.that the ward remains incapacitated (total, partial, minor, etc.);
5.that the appointment of a successor guardian is in the ward’s best interest;
6.that the person seeking to be appointed guardian is eligible and qualified to serve; and
7.the amount of bond required.
The order should then—
1.grant or order the appointment of the person or entity appointed as successor guardian;
2.state whether the successor will serve as guardian of the person, estate, or both;
3.state the successor guardian’s powers and any related limitations; and
4.set the amount of bond and require the guardian to execute an oath.
§ 9.5:7Rights, Powers, and Duties of Successor Guardian
The rights, powers and duties of successor guardians are described in Texas Estates Code sections 1203.202–.203. A successor guardian has all rights and powers of and is subject to all duties of the predecessor. Tex. Est. Code § 1203.202(a). A successor guardian shall administer the ward’s estate as a continuation of the former administration. Tex. Est. Code § 1203.202(b). However, a successor guardian must look to his order of appointment to determine if his powers and duties were expanded or contracted from the predecessor’s administration. Ultimately, the order of appointment will control, and the successor guardian will be required to seek court approval before taking many actions.
Because of the importance of the final account, a successor guardian must pursue the predecessor to return a proper final account and is entitled to any order in the court’s power that is necessary to enforce the delivery of the ward’s estate. See Tex. Est. Code § 1151.105; Portanova v. Hutchison, 766 S.W.2d 856, 857 (Tex. App.—Houston [1st Dist.] 1989, no writ). To the extent a predecessor’s accounting is deficient for any reason, a successor guardian should file any and all objections and appear and challenge the accounting at any hearing to approve the accounting. The ability to challenge the predecessor’s final account and prevent him from receiving a judicial discharge provides a significant power to the successor guardian in his efforts to identify and determine the extent of the ward’s property, confirm receipt of all the property in the predecessor’s possession, and discover any claims against the predecessor in relation to the predecessor’s administration.
A successor guardian may take the following actions: (1) make and be made a party to a suit prosecuted by or against the predecessor, (2) settle with the predecessor and receive and give receipt for any property in the predecessor’s possession, and (3) file suit against the predecessor and the predecessor’s bond(s) for all the estate property that the predecessor received but did not account for and turn over. Tex. Est. Code § 1203.202(c).
Finally, not later than the thirtieth day after qualification, a successor guardian is required to prepare and file an inventory, appraisement, and list of claims of the estate in the same manner required of the originally appointed guardian. Tex. Est. Code § 1203.203.