Guardianships

How to Obtain a Guardianship

The Judicial Process of Obtaining a Guardianship

Estimated Costs

Because of certain medical conditions, developmental disabilities, mental retardation, dementia, or Alzheimer's Disease, an adult person may not be able to take care of his or her own finances, make medical decisions, or understand the need for assistance with the activities of daily living.  Guardianship is the legal process by which a court determines that an adult is unable to make decisions about some or all areas of life and is therefore legally incapacitated.  As a result of that determination, the Court will appoint a Guardian to make those decisions for that adult.

An “incapacitated” person is defined as an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.  The mere ability to state a preference does not constitute mental capacity.  If a person is substantially unable to exercise a right acting on their own, that person is deemed to be unable to exercise that right.

How to Obtain a Guardianship

Obtaining a Guardianship over your incapacitated loved-one can be a complex process.  By following the steps below, however, you can enable The Duran Firm to get a quick start on the process.

1.                Obtain a Doctor’s Letter detailing the nature of the proposed ward’s incapacity.  Because Guardianships are reserved for incapacitated persons, the person filing the Application for Guardianship (the “Applicant”) must provide evidence to the court that the proposed ward is indeed incapacitated.  The primary method of proof is the submission of a letter from the proposed ward’s doctor.  The doctor's letter must be based on the doctor's findings during a recent examination of the proposed ward.  Among other things, the doctor’s letter states the nature and degree of the proposed ward’s alleged incapacity and the specific areas of protection and assistance required.  Below are blank Doctor’s Letters approved for use by the Probate Courts.  Please download the appropriate doctor's letter by clicking on the appropriate link below:

Collin County

Doctor's Letter for Person Incapacitated due to Alzheimer's/Dementia

Doctor's Letter for Person Incapacitated due to Mental Retardation

Dallas County

Doctor's Letter for Person Incapacitated due to Alzheimer's/Dementia

Doctor's Letter for Person Incapacitated due to Mental Retardation

Denton County

Doctor's Letter for Person Incapacitated due to Alzheimer's/Dementia or Mental Retardation

The Doctor's Letters are downloadable Adobe^® PDF files.  If you are having trouble downloading the file, you may have to install the Adobe^® Reader^®:

2.               Complete the Guardianship Prospective Client Information Worksheet.  The proceeding seeking the appointment of a Guardian begins with the filing of a written Application for Guardianship in a proper County Court having jurisdiction over the matter.  The Application can be filed no earlier than the 180th day before the proposed ward's 18th birthday.  The Dallas County Probate Court charges $228.00 to file an Application for Guardianship.  If the proposed ward does not have the assets to pay the fee, we can request a waiver of court costs.  Any person, other than a person with an interest adverse to the proposed ward, has the right to commence a Guardianship proceeding.

The Application must meet certain requirements as set out in the Texas Probate Code.  For example, the Application must state relevant facts about the proposed ward and the nature and degree of the proposed ward’s alleged incapacity.  Because Guardianship is such an important matter, the Texas Probate Code requires that the proposed ward and his or her immediate family receive notice of the Application.  Thus, the proposed ward’s familial relationships must also be set out in the Application.

In order to start work on the Application, I need some basic information about you (the “Applicant”) and the proposed ward.  Please download the Guardianship Prospective Client Information Worksheet by clicking on the link below:

Guardianship Prospective Client Information Worksheet

3.                Complete the Application for Bond.  If the proposed ward has a significant amount of assets, a “Guardianship of the Estate” will also be required.  Usually the probate court will require a Guardianship of the Estate if the proposed ward has more than $2,000.00 in assets or annual income (not counting Social Security).  In establishing a Guardianship of the Estate, the judge will require the Guardian post a corporate surety bond from a bonding company in an amount equal to the level of assets in the estate.  Thus, before attempting to obtain a Guardianship of the Estate, it is a good idea to pre-qualify the Applicant with a bonding company to ensure that the Applicant will be able to post the required bond.  Please call The Duran Firm for the password to download the Bond Application by clicking on the link below:

Bond Application

4.               Return Documents.  Make a copy of the Doctor’s Letter, Guardianship Prospective Client Information Worksheet, and the Application for Bond (if necessary) and return the original documents to The Duran Firm.  An attorney with the Firm will review the documents, determine whether a guardianship is appropriate in your case, and call you to discuss the case.

The Judicial Process of Obtaining a Guardianship.

In the typical Guardianship, the Court will take the following steps upon the filing of an Application for Guardianship.

1.                Serve a Personal Citation and a copy of the Application for Guardianship upon the Proposed Ward;

2.               Assign a Court Investigator to visit the proposed ward and file a report;

3.                Appoint an attorney ad litem to represent the interests of the proposed ward; and

4.               Hold a hearing before the Judge.

A brief description of each step follows.

1.                Serve a Personal Citation and a copy of the Application for Guardianship upon the Proposed Ward.

Once the Application is filed, the appropriate notice requirements must be satisfied.  For example, the proposed ward must be personally served with a copy of the Application.  This is usually done by the County Constable.  The Applicant must also send a copy of the Application to the members of the proposed ward’s immediate family (spouse, children, parents, and siblings) by certified mail, unless they waive service.  Finally, if the proposed ward lives in an institution, the administrator must also receive a copy of the Application by certified mail.

2.               Assign a Court Investigator to visit the proposed ward and file a report.

Whenever an Application for Guardianship is filed, a Court Investigator must investigate the circumstances alleged in the Application to determine whether an alternative that is less restrictive than Guardianship might be appropriate.  The Court Investigator will visit the proposed ward at his or her home and interview the Applicant.  Upon completing the investigation, the Court Investigator will file a report of his or her findings with the court.

3.                Appoint an attorney ad litem to represent the interests of the proposed ward.

Once the probate court receives the court investigator’s report, the court will appoint an attorney ad litem to represent the interests of the proposed ward.  The attorney ad litem will meet with the proposed ward and attempt to inform the proposed ward about the Application for Guardianship and advise the proposed ward of his or her legal options.  The attorney ad litem will also ask to examine the proposed ward’s medical records.   After meeting with the proposed ward, the attorney ad litem will usually file an Answer that generally denies the allegations in the Application for Guardianship and asks that the Applicant prove his or her case to the court.

4.               Hold a hearing before the Judge.

Once the attorney ad litem has filed his or her Answer, a hearing will take place before a judge.  If the Application is uncontested, the hearing is usually very informal and takes less than 10 minutes to complete.  In response to my questions, the Applicant will give testimony in support of the allegations stated in the Application for Guardianship.  The attorney ad litem will then ask the Applicant a series of questions to confirm that Guardianship is in the best interests of the proposed ward.

If the judge agrees that a Guardianship is required and that the Applicant should be named Guardian, then the judge will issue an order to this effect and will direct the probate court clerk to issue “Letters of Guardianship” to the Applicant.  These Letters and the Order are the authority you need to act on behalf of the ward.  The judge will also set a bond amount to ensure that the Applicant fulfills his or her duties as Guardian.

In order to qualify the Applicant as Guardian, the Applicant must satisfy the bond requirement and take an oath to faithfully discharge the duties of Guardian.  If the proposed ward does not have significant assets, the bond amount is usually minimal ($200.00) and can be in the form of a “personal surety bond.”  In a personal surety bond, two persons pledge to pay the court the bond amount (for example $200.00) if the Guardian should fail to adequately perform his or her duties.  No cash is required to be paid in advance.

Estimated Costs

Uncontested Guardianship of the Person Only

A Guardianship of the Person Only is appropriate only if the proposed ward does not hold any property or receive any income in his or her own name.  The estimated fee and costs for an uncontested† Guardianship of the Person Only in Dallas County are as follows:

†Typically a Guardianship is only uncontested when the proposed ward is a mentally retarded adult who desires to remain under the care and custody of his or her parents. 

Contested Guardianship or Guardianship of the Estate.

If a Guardianship of the Estate is required or if the incapacitated adult or another person is contesting your Application for Guardianship, there is no way to estimate the attorney’s fees or costs.  Thus, attorney's fees in this type of situation are billed at the attorney's hourly rate.  Court costs are billed as they are incurred.  Effective January 1, 2007, The Duran Firm's hourly rate for attorney's fees is $195.00 per hour.

Other Guardianship Expenses

Attorney ad litem. The Court will appoint an attorney ad litem for the incapacitated adult. The attorney ad litem’s fees are approved and awarded by the Court. If the incapacitated adult has sufficient assets, and the Application for Guardianship is successful, the ad litem’s fees will be paid from the incapacitated adult's assets, not your assets. If the incapacitated adult has no assets, the County will pay the ad litem’s fees. Ad litem’s fees normally range from $300.00-$500.00 in an uncontested guardianship.  If the Application for Guardianship is unsuccessful, then the Applicant is responsible for paying the ad litem's fees.

Security Bond A Guardian of the Estate will need to obtain a surety bond issued by a bonding company. Annual premiums are paid directly to the bonding company and are a percentage of the bonded amount. A Guardian of the Person must post a smaller bond and the cost is not significant.

Cash, checks, money orders, MasterCard and Visa are accepted for the payment of attorney's fees and expenses.

No claim to government works. Otherwise, © The Duran Firm, PLLC 2006-2008.

Disclaimer: This website is designed for general information only.
The information presented should not be considered or construed to be legal advice.
Moreover, this site does not create an attorney-client relationship.
The attorney responsible for this site is Michael A. Duran, a Dallas Probate Attorney.
The Duran Firm's principal office is located in Dallas, Texas.