Archive for the ‘Guardianship’ Category

Appointees in Guardianship Proceedings Pt. 2: The Guardian ad Litem

August 20, 2010

In a prior post, we took a closer look at Court-appointed attorneys and their specific roles in guardianship proceedings. In every case, whether the Proposed Ward can truly afford it or not, the Court appoints an attorney ad litem to act as the Proposed Ward’s legal counsel. While that appointment is mandatory, the Court has the option (not a requirement!) to also appoint another attorney, known as the “guardian ad litem” for the Proposed Ward. The two roles may sound a bit similar, but they are in fact vastly different.

Just as any attorney ad litem must obtain and maintain special certification by the State Bar in order to be eligible for the appointment, so too must every guardian ad litem. However, the mandatory certification is just about the extent of the similarities between the two appointed roles.

While the attorney ad litem is bound to advocate for the Proposed Ward’s legal interests, the guardian ad litem is primarily concerned with the Proposed Ward’s “best interests.” On occasion, legal interests and best interests are precisely the same thing. Other times, they very clearly are not.

Remember that the attorney ad litem must treat the Proposed Ward like any other client. Confidentiality and the duties of loyalty and zealous advocacy apply. However, the guardian ad litem is not bound by a similar relationship. The guardian ad litem’s job is not to follow the Proposed Ward’s desires and decisions, but instead, the guardian ad litem often acts as an additional arm of the Court to gather information and evaluate what the guardian ad litem believes to be in the bests interests of the proposed ward, even if that decision conflicts with what the proposed ward believes to be in his own best interest.

A guardian ad litem will meet with the Proposed Ward, observe their ordinary daily routine, interview the parties to the guardianship, review any medical information, and generally soak up as much objective evidence as possible. Then, they will usually take a solid position on what the Court should or should not do to best protect the Proposed Ward. Their position may echo the guardianship applicant’s desires, the Proposed Ward’s desires, or fall somewhere in the middle.

The limit of a guardian ad litem’s role remains about as murky as you might expect. What do “best interests” really mean? As a result of a less-than-concrete definition of duties, you find different attorneys applying their own best judgment to the task when called to do the job. The role of the guardian ad litem is certainly important in the cases where the Court chooses to appoint one. It would be nice if the legislature provided a bit more substance to the rules related to them in order for them to be uniformly and effectively applied in guardianships all across our State.

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Appointees in Guardianship Proceedings (Part 1): The Attorney ad Litem

August 9, 2010

Guardianship proceedings often involve procedures that can be a bit confusing to most clients, no matter their position in the case. Among the items that makes guardianships unique is the Court’s use of appointed attorneys to fill specific roles. Over the next few posts, I felt it might be useful to outline why the Court appoints different people, as well as discuss the roles that the legislature intended these appointees fill.

In every guardianship proceeding, the Court must appoint an attorney (known as the “attorney ad litem”) for the individual alleged to be incapacitated (generally referred to as the “Proposed Ward”). The Attorney ad Litem is selected by the Judge and must obtain and maintain special certification by the State Bar of Texas in order to be eligible for appointments. By appointing an attorney ad litem to represent the Proposed Ward, the Judge makes sure that the Proposed Ward receives due process – a fair shake in a judicial proceeding. The attorney ad litem becomes the Proposed Ward’s attorney – to represent the Proposed Ward throughout the guardianship process so that his/her rights are not taken away unfairly.

Like every other attorney-client relationship, the attorney ad litem must maintain his or her client’s confidentiality and loyally pursue the lawful objectives as the client instructs. Just like every other attorney-client relationship, the attorney ad litem should meet with the Proposed Ward, review the Court’s file and discuss potential options and outcomes with the Proposed Ward. At the end of the day, the Proposed Ward’s instructions are the attorney ad litem’s marching orders. If the Proposed Ward opposes the guardianship, the attorney ad litem bears the obligation of opposing the guardianship as vigorously as though the Proposed Ward had hired the attorney himself.

In too many cases, I have seen attorneys ad litem take a lackadaisical approach to their obligations – particularly when the Proposed Ward shows outward signs of actually being incapacitated. Sometimes, attorneys ad litem are content to simply go through the motions of acting like their client’s attorney. Nothing could be more detrimental to the process than this. In fact, an attorney ad litem’s minimal efforts or complacency could very well harm the Proposed Ward by inviting an appeal or some other action by an interested party. The saying that comes to mind is, “if it’s worth doing, it’s worth doing right.”

The attorney ad litem should be the first to point out defects in the form or substance of an application or pleading. If there is an issue with a doctor’s evaluation, the attorney ad litem should be the first to call it to the Court’s attention. If the guardianship applicant lacks standing or might be disqualified, the attorney ad litem has an obligation to raise the issue and fulfill their purpose. Attorneys ad litem are appointed to advocate the legal interests of the Proposed Ward, and nothing short of their zealous advocacy provides their client with the due process to which he or she is entitled.

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Temporary Guardianships: Perfect when they fit, Trouble when they don’t

July 6, 2010

In the past, this blog has identified many of the traditional elements of a guardianship matter, and has outlined many of the alternatives available under certain circumstances. Often, neither the traditional approach or the alternatives are a good fit. The situation might demand that action be taken quickly, particularly if the Proposed Ward and/or her property are at immediate risk.

Temporary guardianships and their procedural elements are frequently misunderstood, by clients and courts alike. In many cases, they are sought for the wrong reasons, or without adequate information, and they can sometimes do more harm than good. Today, temporary guardianships work very much like permanent guardianships. Their cornerstone differences are (a) a fast-tracked process, and (b) a temporary fix to what might be a permanent issue.

Under prior legislation, a temporary guardianship could be granted without notice to the Proposed Ward. I am consistently astonished by the continuing perception that this kind of procedure is still available in Texas. It is not. Many clients, attorneys and even judges apply the outdated procedure when they seek or grant an ex parte temporary guardianship, or one created before the Proposed Ward is ever even notified.

Today, the Probate Code is clear on the notice provisions of every temporary guardianship. When an application is filed, an attorney is appointed to represent the Proposed Ward. The Clerk issues specific notices and provides a copy of the application to every concerned party, including the appointed attorney. The Court sets a hearing date, generally within 10 days. If these steps are not followed, the Court cannot create a temporary guardianship. If it does, buckle up for the bumpy ride.

Temporary guardianships can be a wonderful tool when used appropriately. In a time when a hearing on a permanent guardianship might take weeks to coordinate, temporary guardianships get the ball rolling much faster. In true emergency situations, they can safeguard the Proposed Ward from imminent harm and even temporarily lock down the Proposed Ward’s estate if it is at risk. Used correctly, temporary guardianships can be true lifesavers. Sought for the wrong reasons, or created under repealed and rewritten laws, temporary guardianships can cause more trouble than they fix.

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Alternatives to Guardianships of the Person

February 1, 2010

A few weeks ago, we took a more in-depth look at the use of Section 867 Trusts as an alternative to guardianships for a minor. We examined some the advantages of the trusts and pointed out that guardianship alternatives like them are fine examples of the legislature working to provide reasoned solutions to issues that affect more people every day. There are others, and this time I thought we would focus on a few alternatives to guardianship of the person.

Recall that guardianship of the person involves the Probate Court’s judicial finding of incapacity of a minor or adult. Once the court finds the person lacks some or all capacity, the court appoints an individual to be responsible for that person’s non-financial interests. Often, the court reaches this restrictive measure because there is no option that can better protect the incapacitated person. Other times, there are alternatives that are not nearly as restrictive as the imposition of a guardianship.

For example, the Texas Health and Safety Code provides several useful options. Under that Code’s provisions, a person may take advantage of naming an agent under a Medical Power of Attorney. With some pre-need estate planning, a person could avoid guardianship altogether by nominating someone to make the same kinds of decisions before the need ever arises. Directives to Physicians, also authorized under the Health and Safety Code, might be useful as well. Used correctly, these documents can communicate a person’s intentions and directions regarding medical treatment under terminal or other specified circumstances.

Likewise, the Health and Safety Code may help avoid guardianship and permit the nomination of a surrogate decision maker, much like the agent under a Medical Power of Attorney. In both emergency and non-emergency situations, Texas law may provide a means of assisting the person without the time and expense of a formal guardianship.

Keep in mind that the Probate Court does not approach the creation of a guardianship lightly. Because the process can involve the removal of rights and liberties that a person would otherwise enjoy, most probate judges in Texas are very careful to invoke their guardianship authority only in those circumstances where it appears that there is no other option available. Even then, by requiring appointed guardians to report on the condition of their ward annually, those probate judges are careful to keep a watchful eye on the guardian to see that he or she is making decisions consistent with the ward’s best interests.

Too often, guardianship issues become litigated matters. They are particularly emotional when guardianship of the person is at issue. These cases can pit brothers against sisters, sons against mothers, and so on. Meanwhile, a person who may need help is often tugged in both directions. The fact is that in many cases, these fights have been brewing for some time, and they are going to happen despite all the best estate planning. Human nature often knows no logic. But, with alternatives to formal guardianships in place, the Probate Court and the parties can begin to work together toward crafting a result that accomplishes what everyone should be concerned about – the well-being and best interests of the incapacitated person.

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This Week in Probate and Guardianship Appeals

January 8, 2010

Starting in 2010, Ford & Mathiason LLP will be writing a weekly entry covering newly released opinions by the Texas Courts of Appeals in the areas of Probate and Guardianship. Jason Brower, Associate in charge of the appellate section of Ford & Mathiason LLP, will be authoring these entries.

Estate of Pauline Moran Allen, Tyler Court of Appeals

This week’s entry comes to us from the 12th District Court of Appeals in Tyler. Dollie Weir appealed the trial court’s order which granted Leonard Allen’s motion for summary judgment. Two Issues were raised by Dollie, (1) that Leonard failed to present any summary judgment evidence to support his motion, and (2) that the thirteen writings, purported to be a codicil to Pauline Moran Allen’s Will, lacked testamentary intent.

Summary Judgment Evidence

The Will of Pauline Moran Allen was admitted to probate as a muniment of title on January 16, 2008. On April 2, 2006, Leonard filed a motion to amend the application and probate as a muniment of title thirteen writings purportedly signed by Pauline on December 27, 2002. Dollie filed a contest to Leonard’s motion, stating that the writings lacked testamentary intent. Leonard filed a motion for summary judgment, asserting that the thirteen writings were prepared, dated, and executed by Pauline, contained the signatures of the two witnesses, and complied with all the formalities of a will except for being entitled a will or codicil. However, he failed to attach any summary judgment evidence to his motion.

Dollie moved for both a no-evidence and a traditional summary judgment (attaching the 13 writings along with other summary judgment evidence) and asserted that the writings lacked the necessary testamentary intent to constitute a will or codicil. The trial court granted Leonard’s motion and denied both of Dollie’s motions. The court found that there was no genuine issue of material fact in Dollie’s contest, that no ambiguity existed with regard to the testamentary intent of Pauline in the codicils and that Leonard was entitled to have the codicils admitted to probate as a muniment of title.

The Court of Appeals agreed with the Trial Court on the basis that even though Leonard did not attach any summary judgment evidence in his motion, when both parties move for summary judgment, the trial court may consider the combined summary judgment evidence. Therefore, because Dollie had included all the evidence needed to establish Leonard’s motion, the granting of such motion was not in error.

Lack of Testamentary Intent

Dollie’s second issue revolved around her claim that the thirteen writings lacked testamentary intent. The Court of Appeals first noted that any writing introduced as a will or codicil must contain an explicit statement declaring that the writings are wills or codicils or that the property division will take place only after the decedent’s death. The Court then further noted that the intent of the testator must be ascertained from the language used within the four corners of the instrument offered for probate. Commonly called the “Four Corners Rule” this means that unless there is some ambiguity in the language of the instrument, outside evidence cannot be used to add or contradict the writing or show that the testator intended something different than what is on the instrument.

Leonard, in his motion for summary judgment, was in effect saying that these thirteen writings are unambiguous, executed with all requisite formalities of a codicil, and therefore no outside evidence of testamentary intent is needed or even allowed. Dollie disputed this however, and stated that none of the writings are referred to as wills or codicils, and contain no words evidencing that Pauline intended for these to dispose of her property only upon her death, and therefore lacked the requisite testamentary intent to be regarded as codicils.

The Court of appeals agreed with Dollie. They stated that nowhere in the writings did they find testamentary language, such as words of grant or devise, nor were there words from which a bequest could reasonably inferred. Because no amount of outside evidence could supply the absent testamentary intent, such writings were not a codicil. The trial court therefore erred in granting Leonard’s motion for summary judgment and the Court of Appeals reversed such judgment.

What does all of this mean for you? If you want to ensure proper disposal of your property upon your death, do not draft your own documents. Instead, call us today and schedule an appointment to discuss your estate planning needs.

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Alternatives to Guardianships for Minors: Section 867 Trusts

December 28, 2009

In many cases, the Court’s creation of a guardianship of the estate for an incapacitated individual or a minor may be inevitable. It may be the least restrictive option for the Court. However, many times I am approached by clients for whom there are lesser-restrictive and more efficient mechanisms or processes that can achieve many of the same goals.

When faced with the situation that a minor child is supposed to inherit some money from a parent or grandparent, the Courts cannot allow the minor to receive the property outright. Likewise, the law does not allow a parent to collect the money on their behalf without some formal procedure like a guardianship.

Take, for example, a father’s $50,000.00 life insurance policy naming his minor child as the sole beneficiary. The surviving parent wants to collect the funds owed to the child so that they can be used for the ordinary expenses of raising the minor, or perhaps the funds will be tucked away for college. In either event, the mother wants to collect the funds, and the insurance company wants to pay them but cannot pay the minor child directly. As par for the course, the insurer usually demands that a guardianship be created. They don’t want to be liable to the child by delivering the funds to the mother without some kind of security that the mother will be accountable for the funds. Guardianship of the minor’s estate seems like the best choice, if not the only one. But is it?

As with most attorney answers – it depends. The mother could request that the Court appoint her as the Guardian of the minor’s Estate. But this choice often comes with some significant downside. The mother would need to post a bond for the policy proceeds, and the proceeds will be reduced by the fees and expenses of creating the guardianship. Moreover, the guardianship must be maintained, which means that additional expenses will be incurred annually until the child turns 18. Again, the proceeds would be reduced, sometimes significantly, over time. The overall process might be inefficient and challenging, if not impossible under certain circumstances.

One alternative available to the mother might be a trust created by the Court under Section 867 of the Texas Probate Code. Under this law, a financial institution, and sometimes a person, can be appointed by the Court to act as Trustee of a trust created by the Court for the benefit of the minor. The trust comes equipped with very specialized terms that permit the Trustee to collect the insurance proceeds and use them for the benefit of the minor until anywhere from the age of 18 to 25. Every year, the Trustee reports to the Court and accounts for the trust’s activities.

Often, such an alternative can be achieved relatively quickly and with significantly lower cost. The insurance company is happy to pay a bank or person who will be accountable for the funds, and the mother is happy that the funds will be available for the same purpose for which they were intended by the deceased father.

Sometimes, guardianship is not just the best choice, but the only one. But, alternatives such as the Section 867 Trusts are prime examples of the legislature working for our citizens to provide reasoned answers to questions and issues that affect more people every day. In the areas of guardianship and probate, there may be a number of achievable alternatives that provide the same, if not better, results for the client, at lower cost and with greater overall benefit.

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Guardianships in a Small Town

February 14, 2009

From Matlock to My Cousin Vinny, jokes about the administration of justice in small towns has been the stuff of movies and television for decades, and although Hollywood has always portrayed dramatic differences in justice in small towns versus the big city, I always wondered if differences actually existed.  In the last couple of years, I have found the answer to often be “yes!”

Guardianship laws in Texas are relatively new, and they are much more complex than most attorneys realize.  The primary objective behind guardianship laws is to provide protection and decision-making for someone who no longer has the ability to make decisions for themselves.

In larger counties like Harris and Dallas, dedicated courts (the Probate Courts) hear all probate and guardianship cases, and these are the only types of cases these courts handle.  In smaller counties, however, the county does not have a dedicated Probate Court but instead has county courts that hear civil matters, criminal matters, and probate matters all in the same court.  As a result, the judges and attorneys in many of these courts have too many responsibilities to be able to master the guardianship laws.  As I have seen in several cases recently, the inability to master this topic jeopardizes the freedoms many of us hold dear.

In one recent case, neither the Judge nor the attorneys knew much about guardianship laws.  In that case, the Judge unknowingly granted a guardianship without proper authority.  Before the Court of Appeals ultimately reversed his decisions and started the entire process over, more than $55,000 was paid out of the incapacitated person’s bank accounts to the opposing lawyers without any proper court authority.

In another case, a mother sought to obtain guardianship of her incapacitated adult daughter so she could provide care for her.  She hired lawyers who took 3 years to bring this simple, routine case before the Court.  After literally years of frustration, the mother finally fired the lawyers, and within less than a month, she accomplished on her own what the lawyers were never able to accomplish.  In a case that could easily have been completed in less than 2 months and for relatively low attorneys’ fees, those lawyers spun their wheels needlessly for years and charged nearly $10,000.  The Court-appointed Attorney in the case charged $2,500 in spite of admitting to the Court that he acted inappropriately.

In yet another case, the small county Judge and lawyers forced a relatively young gentleman to be evaluated by a doctor who determined the man to be “totally incapacitated” and said that he lacked the ability to drive, feed himself, care for himself, manage his own money, etc.  At the end of the case, the Court found that the gentleman totally lacked the ability to perform these basic functions, but the Court did nothing to actually address his needs.  The man owns valuable real estate with considerable oil and gas minerals on the property.  So, the Court took all of his property away from him and gave it to a local bank to manage (and make money off of!), but the Court did nothing about addressing the man’s personal needs.  To date, the man still drives his own car, feeds himself daily, maintains his own him, etc. – all of the things the doctor said he lacked the ability to do and the Court ordered that he be restricted from doing.  The only thing that has changed about his life is that he no longer has access to his own money.

In the larger counties with Probate Courts, the judges know how a case is properly brought before the Court, and those judges pay close attention to protecting the rights of the purportedly incapacitated adult.  The Probate judges closely monitor the attorneys fees paid in guardianship cases so that the fees are “reasonable” and not paid for work that is not actually completed.  Likewise, the Probate judges will take great efforts to ensure that someone needing assistance gets it – not just that their money gets taken away from them without any effort to provide food or clothing for them.  All of the issues that I identified in the cases described above would likely have been eliminated had the cases been brought in a Probate Court rather than a small-town county court.

These cases and others like them illustrate the unfortunate reality that the administration of justice, or at least the administration of guardianship laws, often differs from the big cities to small counties.  Although many guardianship cases in small counties can involve huge estates and very complex issues, the attorneys and judges working on those cases are many times not experienced enough to adequately handle the issues before them.

In each of the cases described above, Ford & Mathiason was hired to come in and clean up the mess created by attorneys who took these cases not knowing enough about guardianship laws to properly handle these cases.  In one of these cases, our client was not aware originally that she could hire a lawyer from outside the county to handle the guardianship case.  She was happy to learn that she could retain Ford & Mathiason to help her in the small East Texas town where her case was pending.

If you find yourself engaged in a difficult guardianship case in a smaller county that just does not seem as though it’s been handled properly, you should contact a qualified guardianship attorney who routinely practices in this area.

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