Guardianships for Special Needs
Because of intellectual or developmental disabilities, an adult may not be able to take care of his or her own finances, make medical decisions, or accomplish his or her 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 can 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.
If the matter is uncontested, obtaining a Guardianship over your loved-one with special needs can be a simple process. Guardianship can be a complex process if the matter becomes contested. Either way, by following the steps below, you can enable The Duran Firm to get a quick start on the process.
Step 1. Obtain a Physician's Certificate of Medical Examination 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 certificate from the proposed ward’s doctor. The Physician's Certificate of Medical Examination must be based on the doctor's findings during a recent examination of the proposed ward (within 120 days of filing for guardianship). 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 is a blank Physician's Certificate of Medical Examination approved for use by the Probate Courts. Please download the Certificate by clicking on the link below:
The Physician's Certificate of Medical Examination is a downloadable Adobe® PDF file. If you are having trouble downloading the file, you may have to install the Adobe® Reader®:
Step 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 the county court having jurisdiction over the matter. If the proposed ward does not have an estate, the Application can be filed no earlier than the 180th day before the proposed ward's 18th birthday. The Dallas County Probate Court charges $231.00 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 all receive notice of the Application. Therefore, 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:
BE SURE TO SAVE AND PRINT YOUR WORKSHEET
BEFORE ATTEMPTING TO SEND IT TO THE DURAN FIRM.
Step 3. Complete the Application for Bond (sometimes)
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 value of the assets in the estate. 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:
Step 4. Return the Documents to the Duran Firm
Send a copy of the Physician's Certificate of Medical Examination, Guardianship Prospective Client Information Worksheet, and the Bond Application (if necessary) 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.
Once the Application for Guardianship is filed, the Court will take the following steps:
Step 5. 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), unless they waive service. Finally, if the proposed ward lives in an facility, the administrator must also receive a copy of the Application by certified mail.
Step 6. Assign a Court Investigator to visit the proposed ward and file a Court Investigator 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.
Step 7. 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.
Step 8. 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. We have prepared a Word Template to assist our clients in sending the notice.
Clients wanting access to the template should call our office for the password.
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. In Dallas County, a Guardian of the Person must post a $100.00 cash bond. Many of the surrounding counties will allow guardians to post a personal surety bond which is a written promise to pay the Court if the Guardian fails to properly perform his or her duties. If the proposed ward does not have significant assets, the bond amount is usually minimal ($500.00 or less).
At the Duran Firm, we always provide our clients with an Attorney-Client Fee Agreement that lists the projected fees and costs of the case. We promise that you will know the terms of our relationship prior to your being obligated to pay any money to the Firm.
Attorney's Fees The attorney's fees for a guardianship depend on the type of guardianship required and whether the matter is contested or disputed.
Hourly-Fee Guardianships - In some types of guardianships, there is no way to know in advance how long or how difficult the case will be. There is also no way to estimate costs. Examples include cases where a guardianship of the estate is required or cases that are contested or disputed by the proposed ward or by a member of the proposed ward's family. In cases where we cannot estimate the time or costs, the only fair way to bill for these types of cases is to bill fees on an hourly basis and bill costs as they are incurred. Effective June 8, 2009, The Duran Firm's hourly rate for attorney's fees is $225.00 per hour. The Duran Firm's hourly rate for paralegal work is $75.00 per hour.
Fixed-Fee Guardianships of the Person Only - The Duran Firm can often assist the parents or siblings of persons with intellectual disabilities for a fixed fee. These types of cases usually do not require a guardianship of the estate because the proposed ward does not hold any property or receive any income in his or her own name. Furthermore, the proposed ward and the proposed ward's family are usually in agreement about the guardianship. In fact, the overwhelming majority of the Firm's guardianships for special needs person have qualified for a fixed-fee.
The Duran Firm cannot quote you a fee until the facts and circumstances of the case are determined. In order to be considered for a fixed fee, the following conditions must be met:
- The proposed ward must be a resident of the Dallas/Fort Worth Metropolitan area;
- The proposed ward must not have an estate such that the Court would require a guardianship of the estate;
- The proposed ward must not contest the guardianship; and
- The proposed ward's family must be in an agreement as to the guardianship and the person(s) to serve as guardian(s).
The Duran Firm likes to give you a complete picture of what you can expect to pay for your guardianship case. The estimated total attorney's fees and court costs for an uncontested guardianship of the person only are as follows:
Collin County $900 ($900 Attorney's Fee)
Dallas County $800 ($100 fee for bond due at end of case).
Denton County $1,200 ($1,200 Attorney's Fee)
Tarrant County $900 ($900 Attorney's Fee)
This fixed fee includes assistance with the following tasks only:
- Preparation of the Application for Guardianship of the Person;
- Preparation of Affidavit of Inability to Pay Court Costs by Proposed Ward;
- Preparation of any Waivers of Notice (if required);
- Attendance at the hearing on the application.
- Preparation of the Order Appointing Permanent Guardian of the Person;
- Preparation of the Guardian's Bond and Affidavit of Sureties; and
- Preparation of the Guardian’s Oath.
Bond - The costs for a bond depend on the type of bond required by the Court.
Guardian of the Person Only - In Dallas County, a Guardian of the Person must post a $100.00 cash bond. Many of the surrounding counties do not require a cash bond. Instead, those courts allow guardians to post a personal surety bond which is a written promise to pay the Court if the guardian fails to properly perform his or her duties. No cash is required unless the guardian fails to perform his or her duties. If the proposed ward does not have significant assets, the bond amount is usually minimal ($500.00 or less).
Guardian of the Estate - 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.
Court Costs - If the proposed ward does not have the ability to pay court costs, the Court is required to waive court costs. The Dallas and Denton County Clerks have recently started to challenge the Affidavits of Inabilit to Pay Court Costs filed in Guardianship cases. If your Affidavid is challenged, the firm will bill hourly for the dispute.
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 usually pay the ad litem’s fees. Tarrant County is sometimes an exception tothis rule. Ad litem’s fees normally range from $350.00-$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.
Payment Terms - The Firm accepts cash, checks, money orders, MasterCard and Visa for the payment of attorney's fees and expenses. Due to the reasonableness of our rates, payment of all expected fees and expenses is due prior to the Firm accepting you as a Client. No exceptions.
If you live in a county that is not near the Dallas/Fort Worth Metropolitain area, you may want to call an attorney that has an office near the county courthouse in the county where the proposed ward resides. That attorney's price is often lower than that of an attorney that must travel.