1. The Changing World of Guardianships
Susan M. Redford
Judicial Program Manager

2. The Changing World of Guardianships
2015 Legislative changes
A new philosophy for guardianships
What the future holds

3. 2015 Legislative Changes
HB 39
HB 1438

4. Attorneys and Guardianships
Attorney filing an application for appointment of a guardian must have guardianship certification.
Four hours CLE in guardianship
Including one hour re: alternatives to guardianship and supports and services available to wards
Same certification as is required for court appointees

5. Attorneys and Guardianships
How to check if applicant’s attorney is certified?
Bookmark it or just Google “Texas bar guardianship certification” every time.

6. Court Initiated Investigation
Sec
Order appointing investigator or ad litem must include statement advising person being investigated of their right to petition the court to set appointment aside
Can occur after the date of initial meeting with investigator but before the application for appointment of guardian is filed

7. Court Initiated Investigation
Sec
If a request is made to a financial institution for records, court must provide written notice to person being investigated
not later than the 5th day after the records have been produced

8. Changes to Physicians Letter
Must include whether can make decisions regarding residence
Must state whether condition may improve
If yes, when should be reevaluated
Court must then set hearing reevaluate if grants guardianship (Sec )

9. Criminal History of Proposed Guardian
Sec Government Code
Clerk shall obtain criminal history
Removes familial restriction
Potential criminal liability (Sec (e))
Unauthorized disclosure
Class A misdemeanor

10. Right to Determine Residence
Sec (b) Estates Code
Encourages courts to maximize independence of person under guardianship
Adds presumption regarding determination of residence
Preponderance of the evidence
Must be added to Application and Order

11. Compensation of Guardian Ad Litem
Sec
Guardian Ad Litem or Court Investigator can be compensated out of a Management Trust
Can be existing trust or a trust created as a result of the investigation

12. Costs of Guardianship Court costs of proceeding paid by:
Guardianship estate
Management Trust
Party incurring the costs (Sec )
Excludes ad litems, governmental entities and non profit guardianship providers
Treasury of the county

13. Intervention Only interested persons may intervene
On motion, stating grounds and purpose.
Would intervention unduly delay or prejudice adjudication of original parties’ rights?
Does proposed intervenor have adverse relationship with ward or proposed ward that would unduly prejudice adjudication of original parties’ rights?

14. Access to Ward Relative of ward can ask for access:
Spouse, parents, siblings, children
Court shall schedule hearing within 60 days after application for access is filed.
Can continue for good cause.
Guardian must be cited, personally served
Within 21 days before hearing.

15. Access to Ward
If ward’s health is in significant decline or death is imminent:
Hearing held within 20 days after application in filed.
Cite & serve guardian as soon as practicable.

16. Change of Residence
New limitations on guardian’s ability to place ward in more restrictive environment
Guardian must give notice to Court, Ward and anyone who has requested notice.

17. Change of Residence
If ward or “another person” objects to proposed placement before 8th business day after person’s receipt of notice, court must hold hearing and issue order.
If court doesn’t set hearing within 7 business days, no order is necessary.
Exception: “in cases of emergency”

18. Transfer of Guardianship
Sec
If Court approves transfer, existing bond remains intact until a new bond has been given or a rider has been filed
Sec
Receiving court shall hold a hearing within 90 days
Require guardian to give new bond; or
file rider to existing bond for new court

19. New Philosophy for Guardianships

20. Less Restrictive Alternatives
Traditional Estate Planning
When the alleged incapacitated person has some trouble with executive functions but can still understand they need assistance
Financial power of attorney
Medical power of attorney
Trust
Directive to Physicians

21. Less Restrictive Alternatives
Supports and services
Money management programs
Home care, group home, assisted living

22. Supported Decision Making
Adult with disability
Physical or mental impairment
Voluntarily enter agreement with someone willing to help make life decisions
Decisions not made by supporter
Access to all necessary information

23. Supports and Services Court must find by clear and convincing evidence
Alternatives to guardianship have been considered and are not feasible
Available supports and services have been considered and determined not to be feasible
Estates Code Sec (a)(1)(D) & (E).

24. What the future holds

25. What the Future Holds Expand Guardianship Compliance Project (SB 667)
Require submission of annual reports and annual accountings through a state guardianship reporting portal (OCA)
Develop statewide Guardianship Registry (OCA)

26. What the Future Holds
All guardians not currently required to be certified to register with the Judicial Branch Certification Commission (SB 37)
Establish public guardian offices in counties
Establish regional specialized guardianship courts
Establish more statutory probate courts (multi-county)

28. Sometimes it is a thankless job!

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