III. HOW DOES ONE GET A GUARDIANSHIP
A. Courts: Statutory Probate Courts, County Courts at
Law and County Courts (in that order) have jurisdiction
of guardianship cases.
B. Attorneys: Most Courts will allow only attorneys to
file a guardianship application. In an ideal situation, a
concerned family member will contact an attorney to
file an application to be appointed as guardian of an IP.
C. Court Initiated Guardianships: The Texas
Probate Code provides that “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 a court investigator to investigate
and file an application for the appointment of a
guardian of the person or estate, or both, of the
person believed to be incapacitated.”
In Tarrant County, the Courts require an
information letter and a doctor’s letter to establish
probable cause. If the IP’s incapacity is mental
retardation, the Court must be provided with a
Determination of Mental Retardation or “DMR”. This
report must be based upon an examination conducted
not earlier than twenty-four months before the date of
a hearing to appoint a guardian for the proposed
Unless the IP is in imminent danger, Court Initiated
Guardianships take at least 4 to 6 weeks from the date
the Court receives the proper letters.
D. Social Worker Involvement
1. Adult Protective Services If there is concern
that an adult is being abused, exploited or neglected,
Adult Protect Services should be called (1-800-252-
5400). APS sends a worker to investigate. If APS
believes a guardianship is necessary, the worker will
take a doctor to examine the IP. If no emergency
action is necessary, APS should make a referral to the
Texas Department of Aging and Disability Services for
a guardianship investigation.
2. Nursing Home and Hospital Social Workers
Social Workers at nursing homes and at hospitals have
also used the court initiated guardianship procedure to
begin the guardianship process for clients or patients
who are IP. Hospital discharge planners should
determine if the patient is an IP as soon as possible
since the procedure may take a while. Stating that the
IP will be in imminent danger when discharged is not
considered imminent danger by most courts.
E. Guardian Appointment Process
1. Application for Guardianship is filed by a
private attorney, guardian ad litem or court investigator.
Only attorneys can file applications.
2. The Sheriff or Constable personally serves the
IP with a copy of the Application.
3. The Court appoints an Attorney Ad Litem to
represent and advocate for the IP.
4. The known relatives of the IP must receive
statutory notice of the application.
5. Unless the application is for the appointment of
a temporary guardian, the guardianship cannot be
established until the Monday following ten days from
the date the IP is personally served.
6. The Attorney ad litem must personally visit the
IP and determine if the IP wants to contest the
7. The applicant’s attorney must file a doctor’s
letter with the court which states that the IP is
incapacitated and generally describes the nature of
8. A hearing date is set with the Court. The IP
must attend the hearing unless the Court determines
that it is not in the best interests of the IP to attend.
9. The Judge or jury hears testimony and decides
if a guardianship is necessary, what powers the
guardian should have, how the IP’s rights should be
limited and whether the person seeking to be
appointed guardian is suitable.
10. The Judge then signs an Order Appointing
Guardian. The Guardian must file an Oath and Bond
in order to qualify. The Clerk then issues Letters of
Guardianship to the guardian.
IV. Who can serve as a Guardian?
Statutory Priority Texas Probate Code, Section 677
provides a legal priority as follows:
1. a person selected by IP on a declaration of guardian;
2. IP’s spouse;
3. nearest of kin;
4. any suitable person.
Here is some excellent
information on guardianship.
This is to aid you in the
process and educate you in
your choice of attorney. It is
not specific legal advice and
will not, by itself, constitute an
attorney / client relationship.
Special thanks to Judge King
in the first Tarrant County
Probate Court, on whose
material this is largely based.
|How is a guardianship |
|started? And Who can serve |
Law Office of Eric J. Smith
|Copyright 2007 - 2017 Eric J. Smith All rights reserved.