The majority of guardianships created in Texas are established and maintained without any real argument. However, there are many times when an interested party may challenge creating a guardianship, or when additional involvement may be necessary in maintaining the guardianship. There may be concern about the incapacitated person’s degree of incapacity, the guardian’s right to serve or the actions that they have taken with respect to their ward’s person or property. Among the types of claims often made in this area are:
- Contests to a Finding of Incapacity;
- Challenges to the Suitability of a Guardian
- Actions to Remove and Replace a Guardian;
- Actions to Recover Property from a Guardian;
- Actions in Surcharge Against a Guardian’s Surety;
- Actions Involving Issues of Elder Abuse; and
- Actions Involving Issues of Financial Exploitation of the Elderly.
Contested guardianship proceedings share many of the same features as other civil lawsuits, although they also have their own set of specialized rules and practices. They are often commonly referred to as “pre-death will contests.” Because they can be litigated so fiercely–and because the proposed ward’s estate can be used to pay the litigants’ attorney’s fees–contested guaridanships can significantly drain the proposed ward’s resources. Even those parties who are unsuccessful in being appointed as guardian can, if certain criteria are met, recover their reasonable attorney’s fees, out of the ward’s estate. It is common for families often split into multiple dueling factions, each supporting a different applicant or contestant.
To understand contested guardianships, it is important to first learn some key terms commonly used in guardianship proceedings.
- The applicant–the person applying to be appointed as guardian.
- The contestant–the person opposing the applicant from being appointed as guardian.
- The proposed ward–the person over whom the guardianship is sought.
- The attorney ad-litem–the attorney the court must appoint to represent the proposed ward.
- The guardian ad-litem–the attorney the court may appoint to advocate for the proposed ward’s best interests.
- The Court investigator–the county employee who investigates the circumstances of the guardianship and reports their findings to the court.
- The guardianship of the estate–refers to the proposed ward’s property (finances and property management).
- The guardianship of the person–refers to the proposed ward’s person (medical, clothing, and shelter).
Most contested guardianship proceedings revolve around the three issues:
- Is the proposed ward incapacitated as defined by the Texas Probate Code?
- Is the person applying to be guardian qualified to serve as guardian?
- Does the party bringing or contesting the guardianship application have the requisite legal standing?
Generally, the parties can agree that a guardianship is necessary because the proposed ward is incapacitated and no least restrictive alternative is available. The dispute often turns on who will have control–i.e. who will be the guardian. These disputes can be especially protracted among applicants who enjoy the same degree of statutory priority to serve as guardian (i.e. siblings).
Evidence used in a contested guardianship proceeding falls into two broad categories: (1) evidence used to establish incapacity; and (2) evidence concerning an applicant’s ualification to serve.
Incapacity. In permanent guardianship proceedings, incapacity is most often established through using formal medical evidence, such as a physician’s letter (commonly called a “doctor’s letter”). In an uncontested dispute, an applicant will usually use a doctor’s letter, which is much easier to secure than live expert testimony. A doctor’s letter is hearsay, however, and in contested proceedings, the court will likely exclude it upon proper objection. In that case, it will be necessary for the physician to appear in court and testify about the proposed ward’s mental condition. A doctor’s letter must be: (1) Dated within 120 days from the date the applicant files for guardianship; and (2) based on an examination that was performed within 120 days from the date the applicant files for guardianship. Medical evidence that precedes the guardianship application by more than 120 days may be susceptible to evidentiary objections.
If the physician testifies, then at a minimum, the physician:
- Should be qualified in the medical field relating to the proposed ward’s incapacity;
- Should have sufficiently examined the proposed ward recently to be able to form a reliable opinion about the ward’s mental capacity.
Lay witnesses may also give their opinion about the proposed ward’s mental abilities. The witnesses must provide the facts upon which their opinion is based, or the Court will not consider their opinion. The witness should testify about their observations of the proposed ward–particularly the proposed ward’s ability to perform the activities of daily living, and other behavioral patterns questioning mental capacity. Incapacity cannot be based upon isolated instances of behavior. Accordingly, evidence should be presented over as wide a time period as reasonably necessary.
Incapacity is usually established through a combination of facts. The following list provide some examples of facts that may be used to establish the proposed ward’s substantial inability to feed, clothe, or shelter himself:
- Loss of significant weight;
- Torn or ragged clothing;
- Inability to chose daily attire;
- Making clothing choices inappropriate for weather;
- Inability to secure residence;
- The doors are never locked or cannot be locked;
- The proposed ward lets anyone in the house;
- Inability to operate stove/gas safely;
- Inability to maintain house;
- The house is not properly heated or cooled;
- The house is without utilities;
- The house is cluttered or smells;
- The house has a significant pest problem; and
- The house is otherwise “falling in”.
The following facts may help establish the proposed ward’s substantial inability to care for his physical health:
- Lack of personal hygiene;
- Failure to recognize medical needs;
- Failure to visit the doctor to address medical needs;
- Lack of short-term memory;
- Disorientation as to time and place;
- Refusing care;
- Inability or refusal to administer medications;
- Failure to resist negative influence of others;
- Repeated falling; and
- Repeated wandering.
The following facts may help establish the proposed ward’s substantial inability to manage his financial affairs:
- Inability to perform basic mathematical computations;
- Inability to perform daily money management;
- Inability to understand extent of assets;
- Failure to follow simple commands in financial transactions;
- Inability to write out checks;
- Inability to pay bills;
- Unawareness of unpaid bills;
- Giving away substantial amounts of property; and
- Being abused or taken advantage of financially by a third party.
Qualification. The person applying to become the guardian must be eligible to act as guardian and be entitled to appointment. If the person applying has a criminal history, especially a criminal history involving sexual offenses, then he or she will have significant problems in being appointed. It is presumed not to be in the ward’s best interests to appoint a person as guardian if the person has been finally convicted of any sexual offense, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, to an elderly individual, or to a disabled individual, abandoning or endangering a child, or incest. The court analyzes the circumstances and considers the ward’s best interest in determining whom to appoint as guardian. Whomever the court appoints as guardian, that person must generally give and file an oath and post the required bond. In addition, if two or more persons are eligible and equally entitled to serve as guardian, the court will:
- First, appoint the ward’s spouse to serve as guardian;
- Second, appoint the ward’s nearest of kin.
The court must appoint the eligible person best qualified to serve as guardian:
- If the ward’s spouse or the ward’s next of kin refuse to serve;
- If there are more than one applicant that is related in the same degree of kinship to the ward; or
- If neither the ward’s spouse or next of kin is an eligible person.
In certain situations, a “declaration of guardian,” which is a legal document the proposed executed before becoming incapacitated that expresses their desire about who they want to serve as their guardian, may trump the general priority rules. For example, after the ward’s parent’s death or incapacity the court must appoint the person designated in a will or declaration of guardian to serve as guardian in preference to those otherwise entitled to serve as guardian unless the designated guardian is dead, refused to serve, or would not serve the ward’s best interests. Different priority rules apply to minors.
If the parents live together:
- Both parents are the natural guardians of the person of the minor children by the marriage, and one of the parents is entitled to be appointed guardian of the children’s estates.
If the parents disagree as to which parent should be appointed:
- The court shall make the appointment on the basis of which parent is better qualified to serve in that capacity.
If one parent is dead:
- The survivor is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their estates.
The rights of parents who do not live together are equal, and the guardianship of their minor children shall be assigned to one or the other, considering only the best interests of the children.
Disqualification. There are various reasons why a court may not appoint a person as a guardian. Because the trial court has broad discretion in determining who to select as guardian, it can often be difficult to predict which competing applicant the Court will select–if one of them is selected at all. Because the trial court also has the option to appoint a neutral third party as guardian, many guardianship disputes are settled out of court. Few parties want to risk the court appointing a “non-family” member to care for the proposed ward. The most common reasons and facts supporting each reason are summarized below.
- A person whose conduct is notoriously bad
In Texas, the trial court has broad discretion in determining whether an applicant’s conduct is “notoriously” bad. Factors a court might consider include: (1) an applicant’s history of drugs or alcohol abuse; (2) an applicant’s criminal history of dishonest crimes; and (3) an applicant with a history of violent, angry, or other abusive behavior.
- A person asserting a claim adverse to the proposed ward or the proposed ward’s real or personal property.
Texas courts have ruled that an applicant was disqualified from serving as guardian where the applicant claimed that the proposed ward’s property actually belonged to the applicant.
- A person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate
One Texas court held that an applicant was disqualified from serving as guardian where the applicant failed to comprehend the proposed ward’s needs or the costs of her care. Another court reached the same conclusion, where a surviving parent had not seen the proposed ward in over six years, his unannounced visits upset the proposed ward, and he had failed to attend counseling services that he agreed were necessary to gain the experience and knowledge needed to initiate visiting the proposed ward. Inadequate or negligent supervision can serve as a basis to disqualify someone from serving as guardian. In another Texas case, an applicant was disqualified where the applicant left the proposed ward at home alone, did not provide her with proper nourishment or medication, failed to pay nursing home expenses, and failed to follow through with recommendations form Adult Protective Services and with court orders.
- A person, institution, or corporation found unsuitable by the court
This statutory provision serves as sort of “catch all” to disqualify someone who may not be strictly disqualified under another provision, but whom the Court decides in its discretion should not be allowed to serve as guardian. Since the court has broad discretion in determining who should be the guardian, drug use has been used as a basis for disqualification. For example, an applicant was properly disqualified where the applicant was convicted for misdemeanor possession of marijuana approximately 5 years before the applicant sought guardianship.
- Lack of standing. Texas Probate Code section 642 states that a person who has an interest that is “adverse” to a proposed ward or incapacitated person may not:
- File an application to create a guardianship for the proposed ward or incapacitated person;
- Contest the creation of a guardianship for the proposed ward or incapacitated person;
- Contest the appointment of a person as a guardian of the person or estate, or both, of the proposed ward or incapacitated person; or
- Contest an application for complete restoration of a ward’s capacity or modification of a ward’s guardianship.
The court determines by motion in limine a person’s standing who has an adverse interest to a proposed ward or incapacitated person. What does it mean to have an adverse interest to the proposed ward? In essence, the court can determine whether or not the person has the right to even ask the court to create a guardianship.
Many of the items that would disqualify an applicant from serving as a guardian would also serve as an “adverse interest” to the proposed ward. Not every disqualification will automatically act as an adverse interest so as to preclude standing. For example, a person who is indebted to the proposed ward may still participate in the guardianship proceeding even though he or she may be disqualified from serving as guardian. Such a person may still be eligible to serve as guardian of the proposed ward’s person, although he or she may be disqualified from serving as guardian of the proposed ward’s estate.
Anyone seeking a guardianship should:
Be qualified. It is important that someone applying to be a guardian fully disclose any and all facts to their attorney at the outset of the case that may disqualify them from serving as guardian. Bad facts are bad facts, but when these bad facts are revealed for the first time in front of the judge or jury, the likelihood of success plummets. Ideally, the applicant should:
- Not owe the Proposed Ward any money;
- Not have a criminal or drug history;
- Not have filed for bankruptcy;
- Not have an adverse claim against the Proposed Ward or their property;
- Be capable of taking care of the Proposed Ward and their property; and
- Not have taken advantage of the Proposed Ward or their resources.
If there are any questions about qualification, the Applicant should also request in the application that if the Applicant is not appointed, then in the alternative, that the court appoint another suitable person.
Prequalify for a Bond. Before filing the application, the Applicant should determine the amount of the bond for which they can prequalify. The Court will require a bond in every guardianship of the estate. The bond is a type of insurance policy that covers the performance of the guardian’s duties and protects the Ward’s estate from abuse or negligent loss. The amount of the bond is typically based upon the Ward’s liquid assets. Prepared Applicants will know ahead of time whether or not qualifying for the anticipated bond will be problematic.
Cooperate and be courteous to the Court Investigator and the Attorney ad-litem. During the course of a guardianship, the Court Investigator will contact the Applicant and visit the Proposed Ward. The Attorney ad-litem will also contact and visit the Proposed Ward. Our courts rely heavily on the Court Investigator and their observations and opinions. To a large degree, the courts also lend great credit to the Attorney ad-litem. Accordingly, it is smart to be courteous and cooperative with the Investigator and Attorney ad-litem, to put the Applicant’s best foot forward.