ABUSE, NEGLECT OR EXPLOITATION
If you suspect that an adult is being ABUSED, NEGLECTED OR EXPLOITED, please contact Adult Protective Services at 1-800-252-5400 or visit the DFPS Report Abuse website.
If you have complaints about a facility, contact the Texas Department of Aging and Disability Services at 1-800-458-9858.
If you have questions or concerns about patients' rights in a long-term care facility, please contact the Office of the Long-term Care Ombudsman at 1-800-252-2412.
WHAT IS GUARDIANSHIP?
Guardianship is a legal proceeding whereby a person may be appointed to make medical, placement and/or financial decisions for an incapacitated person. Here are some pamplets to further explain how guardianships work. You may also get at information at the following:
LESS RESTRICTIVE ALTERNATIVES TO GUARDIANSHIP
The Court and attorneys are required by law to see if alternatives to guardianship exist. Here is a list of some alternatives to guardianship.
INITIATION OF GUARDIANSHIP
A guardianship can be initiated in one of three ways:
COURT INITIATED INVESTIGATIONS - ASKING THE COURT TO INVESTIGATE THE NEED FOR A GUARDIAN
Section 1102.001 of the Texas Estates Code provides:
"If a court has probable cause to believe that a person domiciled or found in the county in which the court is located is an incapacitated person, and the person does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate the person’s conditions and circumstances to determine whether: 1) the person is an incapacitated person; and 2) a guardianship is necessary."
Less restrictive alternatives to guardianship should be explored prior to asking the court to initiate an investigation. If you still have a concern about an individual who may need a guardian, you can follow the procedures below and the court will determine whether it has probable cause to initiate an investigation:
Grimes County Court at Law
P.O. Box 570
Anderson, Texas 77830
Once the Information Letter and Physician’s Certificate or DIDD are received by the Court, the Court Investigator or Guardian Ad Litem will be appointed to cases in which the proposed ward does not have sufficient assets to pay for a guardianship action.
DUTIES OF COURT INVESTIGATOR/GUARDIAN AD LITEM: The duties of a Court Investigator/Guardian Ad Litem upon such appointments are as follows:
UPON FILING OF APPLICATION. When an application for guardianship is filed, PW will be served a copy of the application by a Constable. The Court will appoint an Attorney Ad Litem to represent and advocate on behalf of PW and a hearing will be set for the application. The proposed guardian will receive a letter concerning the hearing.
DUTIES OF ATTORNEY AD LITEM. The duties of the Attorney Ad Litem are as follows:
If you are already a guardian, please read the following: http://www.txcourts.gov/jbcc/register-a-guardianship/pre-existing-guardianships/
A. Document checklist:
Every guardianship sought to be created requires the following documents:
B. Attorney Ad Litem:
In every guardianship the Court will appoint an attorney ad litem to represent the proposed ward. The applicant in these cases shall pay a $400.00 deposit into the registry of the Court towards the ad litem expense (unless the applicant, on the applicant’s own behalf, has filed an affidavit of inability to pay the costs under TRCP145). This amount while a deposit only, should cover the expense in the majority of agreed cases. No case for which an ad litem deposit is required will be heard by the Court until such deposit has been paid. The ad litem will need to obtain prior Court approval before undertaking work on the case that will necessitate a fee greater than $400.00. There has been a recent change in the law on who bears the costs, including ad litem fees. If the guardianship estate or management trust created cannot bear the cost, the non-indigent applicant will bear the cost rather than the county treasury. §1155.151.
C. Hearing Schedule:
The Court prefers to expedite guardianship cases, but please do not call to schedule a guardianship prove-up hearing until the following have been taken care of:
In addition, pick a date you know will work for everyone who needs to testify, including the witnesses and the ad litem. Once the hearing is set, make sure everyone receives sufficient notice.
D. Submission of Documents:
The Court needs to have access to all documents required for an uncontested hearing no later than 10:00 a.m. three days before the hearing. Compliance with this rule allows the Court to review the file and contact the attorney should any questions or problems arise. Documents that are ready to be filed by this deadline are returns of service, notarized consents and waivers, the attorney affidavit on service of notice compliance, and proposed orders to be signed. The Court does not want to risk losing an executed document that has not been filed and scanned. Therefore, please file all original documents to be filed in the Clerk’s office. All proposed orders or proofs may be submitted electronically to the Court at email@example.com in Word or PDF format.
If you miss the deadline for submitting documents, you should still get the missing documents filed as soon as possible. However, there is no guarantee that the Court will be able to review the tardy documents before the hearing. The Court may postpone the hearing if an attorney fails to comply with the posted guidelines for uncontested docket paperwork and it appears that there might be significant problems with the paperwork at the scheduled hearing or the Court does not have time to review the tardy documents.
E. Review of Documents with Client Prior to the Hearing:
It is highly recommended that you review all documents that your client will sign with the client prior to the hearing. These include the Oath, Information Sheet and Instruction packet.
F. Attorney Certification Required:
All attorneys for an applicant for guardianship and all court-appointed attorneys in a guardianship proceeding, including an attorney ad litem, must be certified by the State Bar of Texas, or a person or other entity designated by the state bar, as having successfully completed a course of study in guardianship law and procedure sponsored by the state bar or the state bar’s designee. §1054.201. An attorney lacking such certification shall not be permitted to act in the case until such certification is obtained.
G. Criminal Background Check:
There is a new requirement for a criminal background check to be conducted on the proposed guardian. §1104.402 and §1104.403.
Section 1101.001 of the Code outlines the requirements of an application for the appointment of a guardian. The requirements are extensive, and the Court does check to see that all of the required information is included and will require an amended application if required information is missing. The application required elements include:
In all cases, application states:
If proposed ward is an adult, application states:
If proposed ward is a minor, application states:
Section 1251.003 of the Code outlines the requirements of an application for the appointment of a temporary guardian. The Court does check to see that all of the required information is included and will require an amended application if required information is missing. A temporary guardianship will only be granted if the Court is presently with substantial evidence that a person may be incapacitated and has probable cause to believe that the person, the person’s estate, or both require the immediate appointment of a guardian. In other words, temporary guardianships are difficult to obtain unless there is a truly immediate need, such as for a medical procedure or to stop a theft that is occurring. The application must state:
PRACTICE TIP: Temporary Guardianships are difficult to obtain and add considerable expense to the proceedings; there must be an immediate need, a danger to the person or property alleged to be imminent, before a temporary guardianship is granted, and such relief can’t be granted ex parte (a temporary guardianship requires the appointment of an ad litem followed by a hearing to be conducted within 10 days of the application). Given these limitations, you should seriously consider whether a temporary restraining order, other guardianship alternative or simply applying for a permanent guardianship might be more appropriate in your client’s case.
NOTICE IN PERMANAENT GUARDIANSHIPS
A) Personal Service. The sheriff or other officer shall personally serve citation to appear and answer an application for guardianship, including the information required by §1051.252, on:
B. Notice to Interested Persons. The person filing an application for guardianship shall mail a copy of the application and a notice containing the information required in the citation issued under §1051.252 by registered or certified mail, return receipt requested, or by any other form of mail that provides proof of delivery, to the following persons, if their
whereabouts are known or can be reasonably ascertained:
The applicant shall file with the court a copy of any notice required above and proofs of delivery of the notice as well as an affidavit sworn to by the applicant or the applicant’s attorney stating that the notice was mailed as required and the name of each person to whom the notice was mailed, if the person’s name is not shown on the proof of delivery.
It is important to note that the Court may not act on the application for the creation of a guardianship until the applicant has complied with §1051.104(b) regarding notice. See §1051.106.
C. Posting. Upon payment of the requisite fees, the county clerk shall cause notice to be posted by the sheriff or constable at the door of the county courthouse before the return day of the citation or notice including the information required by §1051.252.
D. Waiver of Personal Service. A person other than the proposed ward may waive personal service or notice in writing; however, a proposed ward can never waive personal service, and the attorney for the proposed ward cannot waive service for the proposed ward.
NOTICE IN TEMPORARY GUARDIANSHIPS
A. Personal Service. Notice of the application for temporary guardianship must be personally served on:
The notice must describe the rights of the parties (as listed in §1251.008), the date, time, place, purpose, and possible consequences of a hearing on the application. A copy of the application must be attached to the notice which is served.
B. Waiver of Personal Service. A person other than the proposed ward may waive personal service or notice in writing; however, a proposed ward can never waive personal service, and the attorney for the proposed ward cannot waive service for the proposed ward.
To set a case on the guardianship docket, you must fill out a Setting Request Form, Uncontested Guardianship Docket, and e-file it with the County Clerk. No hearing is set until the Court contacts you with a confirmed date and time, although we ask you to indicate possible dates and times on the form.
You are responsible for making sure that the proposed guardian has done all of the following before submitting the Setting Request Form:
In addition to reviewing the physician’s certificate, the Court Coordinator will need to confirm that the above has been completed before the hearing can be set.
You are also responsible for making sure that the proposed guardian has done all of the following before the hearing:
The Court strongly prefers that all of the above tasks are completed before the proposed guardian comes to the courthouse. If some tasks cannot be done until the proposed guardian comes to the courthouse, you must meet the proposed guardian early enough to ensure that everything is completed before the time of the scheduled hearing.
For guardianships of the estate, you will sign the Court-Ordered Instructions certifying that you have discussed with your client the responsibilities of a guardian of the estate; the signed instructions must be given to the Court before the hearing. The Court expects that you will discuss the responsibilities of a guardian of the person with a client who will be appointed as guardian of the person – including the bond requirement. If your client is being appointed guardian of the person only, you will not sign the instructions.
The following documents should be brought to the prove-up hearing so that the guardianship may be granted at the time of the hearing.
A. The Order Appointing Guardian. The Order should:
B. Oath of Guardian. Do not have your client sign prior to appointment.
C. Attorney’s Affidavit of Notice. This is an oft overlooked document, but one that must be presented before the Order may be signed. §1101.101.
D. Guardian’s General Information Sheet. Please have the proposed guardian completely fill out this sheet prior to the hearing. This information will stay in the court file, not in the public clerk’s file.
F. Initial Annual Report. If a guardianship of the person is sought, have your client complete the Initial Annual Report prior to the hearing. (This form may be downloaded from the Court’s website).
G. Safekeeping Agreement in Lieu of Some Portion of the Required Bond.
Please note that if it is contemplated that your client may prefer a Safekeeping Agreement in lieu of some portion of the required bond you will need to bring an Order Authorizing Safekeeping Agreement to the prove-up hearing. The Order and Safekeeping Agreement are promulgated by the Court and fillable pdf versions of these documents are available on the Court’s website. The Court will establish a full bond amount at the prove-up hearing and if the signed Safekeeping Agreement is ultimately approved the bond will be reduced at that time to reflect the assets kept in safekeeping. It is important to note that only Financial Institutions as defined by §201.101 of the Texas Finance Code qualify for Safekeeping Agreements.
H. Investment Plan.
While not required at the prove-up hearing, if the estate assets are not invested in accordance with §1161.051 within 180 days after the guardian of the estate qualifies, the guardian must file a request with the court to authorize an investment plan.
I. Criminal Background Check.