Wills & Guardianship: 214.227.6400
13355 Noel Rd., Ste. 1100
Dallas, Texas 75240
Dementia, commonly referred to as Alzheimer's disease, often attacks memory and executive functioning, leading to the inability to manage one's finances, medical care, and activities of daily living. Victims often neglect their own health and welfare, and withdraw from their family and friends. If this were not bad enough, there are perpetrators out there that prey on seniors when they are vulnerable. Sometimes the perpetrator it is a stranger, but more often than not the perpetrator is a family member. Guardianship can help wrest your parent away from a bad situation and ensure that they are properly cared for. So what is guardianship? How do you get a guardianship? How can guardianship help you care for your parent?
Guardianship is the legal process by which a court determines that a person is mentally unable to make his or her own personal decisions (they are "incapacitated") and therefore the Court appoints a Guardian to make decisions for that person. An “incapacitated” person is defined as an individual who, because of a mental condition, is substantially unable to provide for his or her own food, clothing, or shelter, to care for his or her own physical health, or to manage his or her own finances. 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, then that person is deemed to be unable to exercise that right.
Step 1. Obtain a certificate from a physician detailing the nature of the incapacity
Because guardianships are reserved for incapacitated people, the person filing the Application for Guardianship (the "Applicant") must provide evidence to the court that the senior (the "Proposed Ward") is incapacitated. The primary method of proof is the submission of a certificate from the Proposed Ward’s physician. The courts have created a certificate that is required in all guardianships filed in the state of Texas. The certificate is called a Physician’s Certificate of Medical Examination or "PCME". The PCME must be completed my an M.D. or a D.O., and must be based on the physician's findings during an examination occurring within 120 days of the filing for guardianship. The PCME states the nature and degree of the Proposed Ward’s incapacity and the specific areas of protection and assistance required. You can 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 Adobe® Reader®.
Sometimes it is not possible to get a PCME because the Proposed Ward will not voluntarily participate in a neurological evaluation. The Proposed Ward's phyisican may also cite medical privacy laws ("HIPAA") and refuse to disclose the Proposed Ward's medical condition to the Applicant. In these situations an Application for Guardianship can be filed without a PCME. The Applicant can then ask the Court to order the Proposed Ward to participate in an Independent Medical Exam or "IME".
Step 2. File an Application for Guardianship
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 Proposed Ward. Jurisdiction lies whereever the Proposed Ward can be served. Any person not having an interest adverse to the Proposed Ward, has the right to commence a Guardianship proceeding. The Proposed Ward's family, however, has priority to serve as Guardian.
The Application must meet certain requirements as set out in the Texas Estates 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 Estates Code requires that the Proposed Ward and his or her immediate family all receive notice of the Application before the hearing can occur. Therefore, the Proposed Ward’s familial relationships must also be set out in the Application. If the situation is dire, the Application must also set out the "imminent danger" to the Proposed Ward's person or estate. To learn more about emergency guardianships, please click visit our page on Temporary Guardianships.
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 $10,000.00 in assets or annual income (not counting Social Security). When establishing a Guardianship of the Estate, the judge will require the Guardian to post a corporate surety bond from an insurance company in an amount equal to the value of the assets in the estate, not including real property. Before attempting to obtain a Guardianship of the Estate, it is a good idea to pre-qualify the Applicant with a bond company to ensure that the Applicant will be able to post the required bond. In determining whether to issue a bond, the bond company will usually run a credit check on the Applicant. Please call The Duran Firm to request a current Bond Application.
Step 4. Return the Documents to the Duran Firm
Send a copy of the Physician’s Certificate of Medical Examination, the Client Information Worksheet, and the Bond Application (if necessary) to The Duran Firm. An attorney with the Firm will review the documents, call you to schedule an appointment, and determine whether a guardianship is appropriate in your case. If so, the attorney will draft an Application for Guardianship which must be signed by the Applicant under oath before a notary public. The Application is then filed with the Court.
Step 5. Complete the Notice Requirements of the Texas Estates Code
Once the Application is filed, the law's 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 a sheriff or process server. 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. The attorney will ask the Applicant to get a form signed by each of the family members that are in agreement with the guardianship. The attorney will have uncooperative family members served via process server or certified mail. Finally, if the Proposed Ward lives in an facility, the attorney must serve the administrator of the facility by certified mail.
Step 6. Assign a Court Investigator to visit the Proposed Ward and file a Report
Whenever an Application for Guardianship is filed in Collin, Dallas, Denton and Tarrant counties, a Court Investigator must investigate the circumstances alleged in the Application to determine whether the Proposed Ward appears incapacitated, whether the Applicant is qualified to serve as guardian, and whether there is a "lesser restrictive alternative" to Guardianship. Smaller counties do not have Court Investigators. The Court Investigator will visit the Proposed Ward at his or her home and interview the Proposed Ward and the Applicant. The Court Investigator will run a background check on the Applicant that includes sealed APS and CPS reports. Upon completing the investigation, the Court Investigator will file a report of his or her findings with the court. Because the Investigator is making a recommedation to the Court, the interview is the time where the Applicant must be blunt as to the Proposed Ward's incapacities and limitations. Don't sugar coat the situation.
Step 8. The Proposed Ward visits with an Attorney Ad Litem
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. Therefore, it is a good idea to have a conversation with the Proposed Ward about your reasons for pursuing the guardianship so that it is not a surprise. The attorney ad litem will advocate in accordance with the Proposed Ward's directions in regards to the guardianship. 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. Do not expect the attorney ad litem to help your attorney with his or her case.
Step 9. 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. 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 Application is uncontested, the hearing is usually very informal and takes less than 30 minutes to complete. You may review an example of my questions below:
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 (no longer the "Proposed Ward" at this point). The judge will also set a bond amount to ensure that the Applicant fulfills his or her duties as Guardian.
Step 10. Qualify 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. The bond requirement may be in the form of a written promise to pay, may be a cash amount of of $100, or may require the Guardian to obtain an "surety bond" from an insurance company in the amount of the assets of the estate (not including real property). The costs of the bond are discussed below.
Tarrant County Probate Court Judge Steve King said at a recent CLE, "Nobody wants a Guardianship." This is particularly true for Seniors because they associate guardianship with losing their right to drive and with being "put in a home." Accordingly, guardianships are usually contested by senior citizens. Because there is no way to know in advance how long or how difficult the case will be, there is no way to estimate attorney's fees or costs. Some seniors capitulate to the guardianship early on while others fight to the bitter end. Thus, 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.
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 a guardianship are as follows:
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.
Payment Terms — The Firm accepts cash, checks, money orders, MasterCard and Visa for the payment of attorney’s fees and expenses. In this life we pay for the sins of others, Therefore payment of a retainer and all expected expenses is due prior to the Firm accepting you as a Client. The good news is that if the application is successful, you can ask for your fees to be reimbursed out of the Ward's estate.
A Guardian has a lot of power. Letters of Guardianship are like a power of attorney, but instead of being signed by an individual, they have the power of a Court order behind them. A guardian typically has the power to direct the Ward's medical treatment. So, if a Proposed Ward is refusing medical treatment, a Guardian can freely obtain medical information and authorize treatment. If a Proposed Ward is refusing in-home care, a Guardian can arrange for and pay for such care with the Ward's assets. If a Proposed Ward is refusing to go to a memory care center, a Guardian can move the Ward to a facility that is equipped to deal with the unique challenges presented by a dementia patient. If a Proposed Ward is being exploited financially, a Guardian can take control over all of the Ward's finances and stop the flow of money out of the Ward's estate. If the Proposed Ward has property that is wasting or is a disadvantage to the estate, a Guardian can sell the property and use the proceeds to care for the Ward.
A Guardian is a fiduciary meaning that the Guardian has a duty to use the assets of the Ward for the sole benefit of the Ward. The best guardianships are those where the Ward does not feel like they are under guardianship. The Guardian and the Ward work together to ensure that the Ward is safe and his or her assets are secure. Furthermore, the Ward participates in all decisions to the extent that they can. If you are seeking guardianship to lord your power over a senior or to get back at a sibling, then you need to examine your motivations for seeking guardianship. We'd prefer not to have those persons as clients. After all, the Ward is still a person, with feelings and emotions that must be respected.