Guardianship Attorney Dallas, TX
Guardianships in Texas are governed by the Texas Estates Code. The Texas Estates Code provides a comprehensive legal framework for protecting incapacitated persons while maintaining strict procedural safeguards to preserve individual liberty. The Texas Estates Code Section 22.016 defines and establishes that guardianships may be created for minors; and adults who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself; care for their own physical health; or a person who needs a guardian appointed to receive funds due them from a governmental source. Courts must find by clear and convincing evidence that the proposed ward is incapacitated, guardianship is in their best interest, alternatives are not feasible, and the proposed ward’s rights will be protected. Guardians have extensive duties including providing care, supervision, medical decisions, and prudent property management, with potential liability for breach of fiduciary duties. The appointment process requires sworn applications, personal service, hearings with specific findings, and ongoing court oversight. Texas courts with probate jurisdiction handle these matters, with statutory probate courts having exclusive jurisdiction where they exist. The judicial process is designed to be exacting and extremely rigorous.
Minors are assumed to be incapacitated. With respect to incapacities of an adult, the statutory framework established in the Texas Estates Code emphasizes that adult incapacity must be substantial and caused by an underlying physical or mental condition. The Texas Supreme Court has recognized that guardianship represents a court-sanctioned infringement of an incapacitated person’s right to control their own property, liberty, and life, undertaken solely to promote and protect their well-being. This recognition underscores the gravity of guardianship proceedings and the need for careful judicial consideration. Courts in Texas search for the best answer possible for the proposed ward. Guardianship is reserved for the situations where, after careful judicial examination of the evidence, the Court finds that there are no lesser alternative remedies to guardianship in the situation. The Texas legal system is designed and calls the Courts to apply exacting scrutiny before approval of a guardianship. Attorneys practicing guardianship law either as private attorneys or ad litem attorneys are required to complete Attorney Certification training pursuant to Texas Estates Code Section 1051.104(b).
Why Hire A Guardianship Attorney in Texas
Guardianship seeks to interfere with, restrict, or deny fundamental constitutional protected rights over one’s own life, liberty, property and pursuit of happiness. Protection of a proposed ward’s basic rights are paramount in guardianship proceedings. The stakes are extremely high; therefore, guardianship applicants who want to take these rights away from a proposed ward must establish by clear and convincing evidence incapacity of the proposed ward. In recent years guardianship has received a lot of attention in public media and in the judiciary because of some high-profile abuses by appointed guardians. Also, America is an aging society and the aged becomes frail psychologically as well as physically. With age, often comes dementia other neurological and psychological illnesses and conditions that impair individual’s ability to make rational decisions or impair individual’s ability to carry on their independent lifestyles. Oftentimes in these modern-day situations; parents, children, physicians and others look for human solutions for those among us who are perceived to lack the ability to function independently. They often turn to guardianships. In some sense guardianship may be due to a failure to plan since Estate Planning options are available Texans prior to the appearance of incapacity. It is prudent to consult with Estate Planning Attorney and Tax Planning Attorneys before you or a family member becomes incapacitated. Estate planning lawyers can advise and counsel families in Wills, Trusts and Estates law where Texans can select guardians of their choice to possibly avoid the need for guardianship proceedings.
However, sometimes adults have inadequately planned for their own disabilities or those of their loved ones. Texas like most other states has established a strict statutory process to fill in where estate plans are inadequate. The Texas Estates Code lays out a detailed plan that balance the constitutional rights of a proposed ward to control their own lives and societies rights to take their liberty away through a rigorous judicial guardianship process. Guardianship is a judicial process where parties are best represented by competent guardianship attorneys. Texas Estates Code establishes dual burden of proof standards that courts must satisfy before appointing a guardian. The court must find by clear and convincing evidence that: (1) the proposed ward is an incapacitated person; (2) it is in the proposed ward’s best interest to have a guardian appointed; (3) the proposed ward’s rights or property will be protected by the appointment; (4) alternatives to guardianship have been considered and determined not to be feasible; and (5) supports and services available to avoid guardianship have been considered and determined not to be feasible. All five of these legal elements must be shown by clear and convincing evidence. This standard of proof is defined in Texas law as that measure of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations, representing an intermediate standard between preponderance and beyond reasonable doubt. This is an exacting standard, and although guardianship cases can be tried to juries, prudence might caution one to lean towards the bench trial in most cases.
Additionally, the court must find by a preponderance of evidence that: (1) the court has proper venue; (2) the proposed guardian is eligible and entitled to appointment; (3) for minors, the guardianship is not primarily to establish school residency; and (4) the proposed ward either lacks total capacity or lacks capacity for some but not all necessary tasks.
The Texas Court of Appeals has emphasized that the Texas Estates Code sets out uniform, strict procedural safeguards to protect liberty and property interests before courts may take the drastic action of removing an individual’s ability to make their own legal decisions. These safeguards recognize that guardianship proceedings implicate fundamental constitutional rights and require meaningful due process protections. Those appointed guardian over the ward’s person or estate are held to very high standards.
Guardians Lability and Legal Theories to Hold Guardians Accountable:
Guardians face potential liability under several legal theories in Texas. Guardians owe fiduciary duties to their wards and may be held liable for breach of those duties under a four-year statute of limitations. Guardians are required to post bonds. The bonds provide additional security, with suits on guardian bonds also subject to a four-year limitation. The guardian’s failure to file required notices can result in liability for damages suffered by any person due to such neglect, unless the person otherwise had notice.
Due to this strict judicial process and the high sakes to the ward, all lawyers serving as attorneys in guardianship proceedings must demonstrate in writing to the court pursuant to the Texas Estates Code current Guardianship Attorney Certification issued by the State Bar of Texas.
Why Choose the Guardianship Attorneys at Coleman Jackson, P.C. for Representation in a Guardianship in Texas?
As experienced guardianship attorneys, we can represent either the ward, applicant, guardian and others in guardianship matters, including:
- Counseling and representing clients when complying with the guardianship application requirements.
- Helping clients to comply with strict notice and service requirements under the Texas Estate Code.
- Preparing and representing clients in guardianship hearings and judicial proceedings.
- Representing wards and other interested parties in fiduciary claims, neglect, abuse, malfeasance, self-dealing and other violations of duties by guardians.
- Represent guardians who have been accused of neglect, abuse or other violations of their guardianship duties and responsibilities.
Need an Experienced Guardianship Attorney and Counselor in Texas?
Contact the experienced Texas Guardianship Attorneys and Counselors at Coleman Jackson, P.C. today at (214) 599-0431 for assistance with your overseas business law plans.
