1. The Buck Stops…Where? Parens Patriae and the Court’s Obligation to Protect Those In Need
Steven D. Fields
Terry W. Hammond

2. pa·rens pa·tri·ae ˈparənz ˈpatri-ē,ˈpatri-ī/ noun: parens patriae
“the government, or any other authority, regarded as the legal protector of citizens unable to protect themselves.
“the principle that political authority carries with it the responsibility for protection of citizens.”

3. With the enactment of the statute De Praerogativa Regis in the 14th century, guardianship was formally recognized in England as a duty of the sovereign and exercised through the Lord Chancellor. Thenceforth, the Crown, as parens patriae (a term derived from the emerging English concept of the King's role as father of the country) would shoulder responsibility for protection and care of the person and property of mentally disabled persons.

4. After the American Revolution, State courts of equity, applying English common law, or acting under constitutional provisions or statutes, exercised a modified form of parens patriae jurisdiction over the persons and property of the mentally incompetent to assure that those unable to care for themselves were protected from harm. Currently, many different kinds of courts in all 50 states conduct incompetency hearings in guardianship proceedings or their equivalent.

5. The Buck Stops…Where?

6. Texas Estates Code 1201.001 DETERMINING GUARDIAN'S PERFORMANCE OF DUTIES
“The court shall use reasonable diligence to determine whether a guardian is performing all of the duties required of the guardian that relate to the guardian's ward.”

7. Texas Estates Code 1201.003 Judge’s Liability
A judge is liable on the judge's bond to those damaged if damage or loss results to a guardianship or ward because of the gross neglect of the judge to use reasonable diligence in the performance of the judge's duty under this subchapter.

8. The Buck is all yours! Guardianship is different than other remedies.
Guardianships must be supervised by the Courts
Guardianship should be used as a last resort
All less restrictive alternatives and supports and services must be considered and determined not to be feasible and court must find this by clear and convincing evidence

9. Alternatives to Guardianship
Medical Power of Attorney – HSC 166
Durable Power of Attorney – TEC 751
Mental Health Commitment
Declaration for Mental Health Treatment
Representative Payee for SS Benefits
Joint Bank Accounts
Supported Decision Making Agreements
Temporary Guardianships
Community Administrators

10. Supports & Services TEC 1002.031
Available resources to help an individual
Meet food, clothing and shelter needs
Care for physical or mental health
Manage the individual’s financial affairs
Make residential, employment, marital, transportation decisions

11. Issues upon Filing of Guardianship Application
Attorney filing guardianship application must have a current certified letter from the State Bar of Texas –
TEC
Clerk may require that attorney file a copy of certification letter with their application
Courts may not allow the applicant to proceed with application until proof of certification is filed
Court may appoint a certified guardian ad litem if any imminent danger to proposed incapacitated person

12. Issues Upon Filing of Guardianship Application
The proposed incapacitated person must be personally served by Constable and return of citation must be filed with Clerk prior to hearing
Certain relatives of the proposed incapacitated person must be served, file waivers or be given notice by certified mail prior to hearing
An attorney ad litem with a current certification letter from the State Bar must be appointed to represent the wishes of the proposed incapacitated person

13. Texas Estates Code 1001.001 Policy; Purpose of Guardianship
A court may appoint a guardian with either full or limited authority over an incapacitated person as indicated by the incapacitated person's actual mental or physical limitations and only as necessary to promote and protect the well-being of the incapacitated person.
In creating a guardianship that gives a guardian limited authority over an incapacitated person, the court shall design the guardianship to encourage the development or maintenance of maximum self- reliance and independence in the incapacitated person, including by presuming that the incapacitated person retains capacity to make personal decisions regarding the person's residence.

14. Texas Estates Code 1201.001 DETERMINING GUARDIAN'S PERFORMANCE OF DUTIES
(a) At least annually, the judge shall examine the well- being of each ward of the court and the solvency of the bond of the guardian of the ward's estate.
(b) If after examining the solvency of a guardian's bond as provided by Subsection (a) the judge determines that the guardian's bond is not sufficient to protect the ward or the ward's estate, the judge shall require the guardian to execute a new bond.
(c) The judge shall notify the guardian and the sureties on the guardian's bond as provided by law

15. The clerk shall… Serve a citation or notice…. (TEC 1051.052)
Deliver the original and a copy of the citation or notice….(TEC )
Issue a citation stating…. (TEC )
Maintain a “Judges Guardianship Docket” (TEC )
Maintain a “Claim Docket” (TEC )
Maintain a “Guardianship Fee Book” (TEC )
Maintain a case file….(TEC )
Obtain a criminal history record…. (TEC )
Issue a citation to all persons interested in the guardianship (sale of personal/real property) (TEC / )
Immediately call to the judge’s attention opposition to the sale that is filed during the period prescribed in the citation (TEC )

16. The court shall…
Appoint a GAL or investigator to investigate (court-initiated guardianship - TEC ) & (modification - TEC ), attorney ad litem (complete restoration ), guardian ad litem and attorney ad litem (removal – TEC (6), (7))
At a hearing for the appointment of guardian, inquire into… (TEC
Find by clear and convincing evidence that…(TEC )
Find by a preponderance of evidence that …(TEC )
Make a reasonable effort to consider preference…(TEC )
Appoint a guardian according to the circumstances/considering best interests (TEC )
Hear evidence and determine…(bond) (TEC )
Consider the condition of the estate (monthly allowance) (TEC )
Order the sale of property…if the court is satisfied the sale is necessary or advisable (TEC )
Inquire into the manner in which the sale was made/hear evidence in support of or against the report, and determine bond (TEC )

17. Courts are often too reactive
Big Issue
Courts are often too reactive
Courts must be proactive and manage the case

18. Possible breakdowns…Clerk & Court
Criminal background checks
Concerns by community
Concerns by family
Letters from Adult Protective Services
Requests from protected person
Appointment of Guardian of adult while still a minor
Missing alternatives/failing to limit powers
Hearing on transferred guardianship
Citations by posting on sales of personal/real property
Joint appointments other than husband/wife, JMC’s, co-guardians under the laws of another jurisdiction, both parents if no SAPCR/SAPCR if JMC’s
Waiver of bonds/insufficient bonds
Guardianship of the Estate where minimal/no assets
Failure to file reports/accountings
Failing to modify/terminate/restore

19. Big Issue
General jurisdiction courts are attempting to manage burgeoning guardianship caseloads without sufficient staff and expertise

20. National Probate Court Standards
The pragmatic justification for caseload statistics on wills, decedents’ estates, trusts, conservatorships, and guardianships is compelling. Caseload statistics are the single best way to describe the courts’ current activities as well as to predict what they will likely face in the future. Caseload statistics are analogous to the financial information used by the private sector to organize their operations. Well-documented caseload statistics provide powerful evidence for claims for needed resources. Comprehensive and reliable caseload statistics can increase understanding of the functioning of courts with probate jurisdiction and direct efforts to enhance and improve their performance.

21. National Probate Court Standards
STANDARD COURT CONTROL
Probate courts should actively manage their cases.
COMMENTARY
To ensure prompt and fair justice to the parties appearing before them, probate courts should recognize the importance of controlling the progress of the cases over which they preside. To this end, the court should have in place written policies and procedures establishing and governing an appropriate case flow management system. Scheduling of cases should, in general, reflect a realistic balance of the competing demands for a timely resolution of the matters placed before the court, the opportunity for relevant persons to participate in the proceedings, and careful consideration and exploration of the issues raised.

22. National Probate Court Standards
STANDARD FINANCIAL MANAGEMENT A. Probate courts should seek financial support sufficient to enable them to perform their responsibilities effectively. B. Probate courts should inform state and local funding sources on a regular basis about the importance, breadth, and impact on the community and individuals of probate courts and their decisions, as well as about the demographic trends affecting probate court caseloads. C. The court should institute standardized procedures for monitoring fiscal expenditures.

23. National Probate Court Standards
STANDARD CONTINUING PROFESSIONAL EDUCATION
A. Probate courts should work with their state judicial branch education program and national providers of continuing education for judges and court staff to ensure that specialized continuing education programs are available on probate court procedures, improving probate court operations, and issues and developments in probate law.
B. Probate courts should encourage and facilitate participation of their judges, managers, and staff in
relevant continuing professional education programs at least annually.

24. National Probate Court Standards
STANDARD MANAGEMENT INFORMATION SYSTEM
A. Probate courts should use a record system that is easily accessible and understandable for all persons who are entitled to the information within those records, and that effectively protects the confidentiality of sensitive information The records should be comprehensive, indexed, and cross-referenced.
B. Probate courts should regularly monitor and evaluate their management information system, and acquire and utilize new technologies and equipment when needed to assist the court in performing its work effectively, efficiently, and economically.

26. The Buck Stops…Where?

27. Texas Guardianship Association
5000 Lakewood Waco, Texas Tel: Fax: