How To Obtain Guardianship Of Someone Who Cannot Take Care Of Themselves

GUARDIANSHIP CASE LAW UPDATE 2007

GLEN A. RIVES Fox & Associates, L.L.P. 1600 Highway 6 South, Suite 230 Sugar Land, Texas 77478

State Bar of Texas ADVANCED GUARDIANSHIP LAW March 9, 2007 Houston CHAPTER 10

GLEN A. RIVES Fox & Associates, L.L.P. 1600 Highway 6 South, Suite 230 Sugar Land, Texas 78478 713-871-2076 Fax: 713-871-2498

BIOGRAPHICAL INFORMATION

EDUCATION B.S. The University of Texas, Austin, Texas M.S. Miami University, Oxford, Ohio J.D. South Texas College of Law, Houston, Texas PROFESSIONAL EXPERIENCE Fox & Associates, L.L.P., Houston and Sugar Land, Texas, 2006 - Present Barnes & Karisch, P.C., Austin, Texas, 2002 - 2006 RBC Dain Rauscher, Austin, Texas, 1998 - 2001 PROFESSIONAL ACTIVITIES Member: State Bar of Texas, Real Estate, Probate, and Trust Section Member: Harris County Bar Association, Probate, Trust, and Estate Section; Entertainment and Sports Law Section Member: Fort Bend County Bar Association Member: Houston Estate and Financial Forum (HEFF) Member: Attorneys in Tax and Probate (ATP) Former Lead Attorney: CRISP/ARC of Texas Guardianship Program, Austin, Texas

TABLE OF CONTENTS I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

APPOINTMENT AND QUALIFICATION OF GUARDIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. In the Guardianship of K.B. and In the Guardianship of J.N.B., Nos. 04-05-00852-CV & 04-05-00852-CV, 2006 S.W.3d (Tex.App.-San Antonio 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. In re: R.G.W., A Minor, No. 11-04-00237-CV, 2006 S.W.3d (Tex.App.-Eastland 2006, n.p.h.) . . . . . . . . C. In the Guardianship of Betty JoAnn Erickson, An Incapacitated Person, No. 06-05-00129-CV, 208 S.W.3d 737 (Tex.App.-Texarkana 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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III. ATTORNEY AD LITEM FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Texas Municipal League v. Burns, No. 2-05-368-CV, 2006 S.W.3d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 IV. AUTHORITY OF GUARDIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Johnson v. McClintock, No. 13-05-00359-CV, 202 S.W.3d 821 (Tex.App.-Corpus Christi 206, n.p.h.) . . B. Di Portanova v. Monroe, No. 01-04-00992-CV, 2006 S.W.3d (Tex.App.-Houston 2006) . . . . . . . . . . . . . C. In re: Guardianship of John R. “Jack” Archer, 203 S.W.3d 16 (Tex.App.-San Antonio 2006, n.p.h.) . . . .

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V. EXAMINATIONS AND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Robert W. Karlen v. Joye P. Karlen, No. 014-06-00250-CV, 209 S.W.3d 841 (Tex.App.Texarkana 2007, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Morris Mitchell Robinson v. Glenda E. Willingham, No. 03-05-00221-CV, 2006 S.W.3d (Tex.App.Austin 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 VI. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. In re: Guardianship of Kathryn Houseworth Gibbs, An Incapacitated Person, No. 02-05-00143-CV, S.W.3d (Tex.App.-Fort Worth 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. In re: Rodney Oestreich, Guardian, No. 04-06-00455-CV, S.W.3d (Tex.App.-San Antonio 2006, n.p.h.) C. In re: Guardianship of L. A. Moon, An Incapacitated Person, No. 06-05-00128-CV, S.W.3d (Tex.App.-Texarkana 2007, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. In re: Ella V. Mask, No. 04-06-00097-CV, 198 S.W.3d 231 (Tex.App.-San Antonio 2006, n.p.h.) . . . . . .

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VII. LEGISLATIVE HEADS UP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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mom’s sister, “aunt” filed an application to become permanent guardian of the children. Stepdad withdrew his application in favor of aunt’s appointment. K.B. who was fifteen years old at the time, filed a selection of guardian pursuant to section 680 of the TPC stating her wish for her aunt to be her guardian and her opposition to her dad’s appointment. The trial court appointed aunt as permanent guardian and found dad disqualified to serve via section 681(7) of the TPC. Dad appealed that the court improperly applied TPC section 681 and that section 676 governs selection of a guardian. He argued that he should be appointed as surviving parent unless he is incapacitated. The court of appeals disagreed stating that a surviving parent may still be disqualified as guardian under section 681 of the TPC. The presumption that under TPC section 676 that the best interests of a child are served by allowing custody by a natural parent, may be rebutted by evidence that the surviving parent is disqualified. Because K.B.’s selection of a guardian under section 680 is an exception to the general rules of section 676, the court found that the trial court did not abuse its discretion in appointing aunt as guardian. The court also found that the trial court did not abuse its discretion in determining that dad was disqualified under section 681(7) to be appointed guardian for J.N.B.

GUARDIANSHIP CASE LAW UPDATE 2007 I.

INTRODUCTION Guardianship law traditionally does not have the volume of cases that other areas of law are blessed (or cursed) to have. From February 2006 to February 2007 there were only a small number of cases in the guardianship area and many were only memorandum opinions. In fact, the rulings in these cases seem to be vanilla and very predictable. However, there are valuable things to learn even from the predictable cases, not the least of which is the reinforcement of our knowledge of the Texas Probate Code and sections relating to guardianships. For purposes of this paper, I am using a similar format to what Randy Drewett used previously for his case law update. The Texas Probate Code is referred to as “TPC” throughout the paper and the cases are listed by subject matter under the Texas Probate Code headings. Some cases obviously can be classified in several ways so, for purposes of this paper, I included these papers in the area which they may be most applicable. The citations for these cases are found in the table of contents and not in the body of the paper for no reason other than ease of reading. After each case discussion in the paper I have included a “HEADS UP!” paragraph that hopefully will alert the reader to an issue and avoid potential problems in their practice. I would like to acknowledge the help I received in preparing this paper from two individuals. First, Kenneth Fair with Jones McClure Publishing for making sure I did not miss anything vital to our discussion. Second, my friend and former colleague, Glenn Karisch, at Barnes & Karisch, P.C. for his input on the ongoing legislative wrangling with regard to guardianship law happening in the bowels of our state capitol.

HEADS UP! Logic still rules in guardianship law. All the sections regarding appointment and qualification of guardian must be read together. The Court has discretion to appoint and remove guardians and disqualify applicants. B.

IN RE R.G.W., A MINOR

Mom and dad had one child in 1989. The parents divorced in 1996. Mom died in 2003, when R.G.W. was fourteen years old. Dad and grandmom each filed guardianship of the person and estate of R.G.W. Dad testified that he and mom continued to live together after the divorce and that the two only divorced because grandmom threatened to cut mom off from her money and to throw her out of her will. He also testified that he was involved in R.G.W.’s everyday care and that grandmom had been verbally abusive to R.G.W. Grandmom countered that she was not verbally abusive, that she paid for multiple houses during the marriage, and that dad never paid child support. She introduced records to show that dad owed $26,250 in child support before the hearing. Dad moved for a directed verdict on the grounds

II. APPOINTMENT AND QUALIFICATION OF GUARDIAN A. IN THE GUARDIANSHIP OF K.B. AND J.N.B. Mom and dad had three children and divorced in 1995. In 1998, mom moved with the children to San Antonio and dad at that point ceased all contact with his children. In June of 2004, mom died in a car accident. Mom’s current husband, “stepdad” was appointed temporary guardian of the children. Stepdad then filed an application to be the children’s permanent guardian. Dad filed an answer to the application and then filed his own application for permanent guardian. After an extension of the temporary guardianship, 1

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that grandmom had not shown evidence of a disqualification to prevent his appointment as guardian as R.G.W.’s natural father, which was granted. Grandmom appealed on three issues: that failure of dad to pay child support disqualified him under TPC section 681(4),(6),(7), because he is in effect a party to a lawsuit against R.G.W., because he is asserting a claim against R.G.W., and because he is disqualified under section 681(7) for inability to properly and prudently manage R.G.W. or her estate. The court cited section 676 and ruled that a parent as natural guardian is generally entitled to be appointed guardian of a minor unless the parent is shown to be disqualified. The court stated that there was nothing in the record to support grandmom’s claims and therefore, the trial court did not abuse it’s discretion in appointing dad as guardian.

The court stated that the TPC implies that a proposed ward may not waive jurisdictional procedures according to sections 633(e) and 635. The court also points to the small amount of case law on point that also backs up this reasoning. Therefore, the trial court did not have jurisdiction to appoint a permanent guardian until the 10 days had run and it’s appointment is void. In addressing the removal of son as temporary guardian the court pointed out that he could be removed under several sections of the TPC, specifically, sections 761(a)(7),(c)(6)-(6-a) and 875. The court expressly upheld the trial court’s removal of son under section 875 of the TPC because it was in Erickson’s best interest. The court also pointed out that Erickson could be in limbo after its ruling leaving her without a guardian, but specifically mentioned that the attorney ad litem could protect her interests until such time that a new guardian was appointed.

HEADS UP! Just like in the previous case, the court starts at TPC section 676 and then moves to section 680 and 681. A parent owing child support payments in and of itself does not disqualify an applicant for guardian.

HEADS UP! The court has discretion to appoint and remove a guardian. Calender all dates related to guardianship procedures as this is the foundation of the process. Most attorneys may pay closer attention to the recent legislative changes regarding timing of Inventories, Monthly Allowances, etc., but do not forget the importance of the basics.

C. IN THE GUARDIANSHIP OF ERICKSON Erickson is an elderly woman with diminishing mental capacity. Her two sons applied to have a temporary guardianship. One son was disqualified and the other (son) was appointed temporary guardian. A longtime friend of Erickson (friend) challenged son for both temporary and permanent guardianship. The trial court appointed friend as permanent guardian and entered a finding that son had cruelly treated Erickson and ordered his removal as temporary guardian. Son appealed the factual sufficiency of his removal and argued that the appointment of friend was premature. In addressing the issue of the appointment of a permanent guardian the court looks to jurisdiction. In citing TPC section 633(f) the court states that there are no optional procedures for invoking jurisdiction and that there must be compliance for a trial court’s jurisdiction. In this case, the court held a hearing on several issues before the expiration of the 10-day period set out by the TPC. Initially, the hearing was for several motions to be considered, but after its conclusion, the Court stated in open court that “friend is named as permanent guardian of the estate” but did not sign the order until the 10-day period expired. The Appellate court ruled that “judgement in this case was rendered by the court’s oral pronouncement of judgement in open court.” Friend argued that all parties had waived any jurisdictional requirements but the court did not agree.

III. ATTORNEY AD LITEM FEES A. TEXAS MUNICIPAL LEAGUE v. BURNS This is a complicated worker’s compensation case that briefly touched on the awarding of ad litem fees. Appellants complained that fees were improperly awarded to the ad litem since there is no statutory authority to support the award. The court looks to section 34A of the TPC in showing that an ad litem “...is entitled to reasonable compensation for services in the amount set by the court and to be taxed as costs in the proceeding.” It also points to section 622(a) which provides that “the laws regulating costs in ordinary civil cases apply to a guardianship matter unless otherwise expressly provided for by this chapter.” In linking these provisions with Texas Rule of Civil Procedure 131 which provides that a “successful party to a suit shall recover from its adversary all costs incurred therein,” the courts states that the trial court was authorized to assess the ad litem’s fee’s against the appellants. HEADS UP! In our orders appointing guardians and discharging the ad litem, stating the fees awarded to the 2

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ad litem is always attached to the statement that such fees shall be taxed as costs.

the Ward due to your actions (or inaction). C. IN RE GUARDIANSHIP OF ARCHER

IV. AUTHORITY OF GUARDIAN

Niece brought a derivative legal malpractice claim on behalf of her uncle’s temporary guardian, alleging that the temporary guardian had failed or refused to prosecute the lawsuit. Uncle suffered a stroke that affected his mental abilities. After the stroke, he made changes to his estate plan under the guidance of his girlfriend and several attorneys. In 2000, guardianship proceedings were instituted in probate court and in separate hearings an attorney ad litem, guardian ad litem, and temporary guardian were all appointed. Niece brought suit for, among other things, malpractice and breach of fiduciary duty against the estate planning attorneys and the attorney ad litem, and breach of fiduciary duty against the temporary guardian. Niece claimed that she was a person interested in the estate of her uncle and therefore had standing to bring the lawsuit and because the attorney ad litem had failed or refused to prosecute the lawsuit. In her argument, niece cited several probate estate cases to support her ability to bring a derivative lawsuit. The court stated that it begins with TPC section 773 which holds that only a guardian of the ward’s estate may bring a lawsuit on behalf of the ward. The ad litem countered, and the court agreed, with the position that you simply should not overlay guardianship law with decedent’s estate law. Specifically, unlike heirs with a present property interest in an estate, a guardian has no property interest in the guardianship estate. The court points out that as an “interested person” under section 601(15) of the TPC, she could only seek removal of the temporary guardian and bring an action against the guardian for damages. The court points out that if niece were able to bring suit on the guardian’s behalf, it would circumvent the bonded guardian who owes a fiduciary duty to the ward. Therefore, according to the court, niece lacked standing and capacity to bring her action.

A. JOHNSON V. MCCLINTOCK Ward owned three tracts of land, 1, 2, and 3. In 1993 a guardian was appointed for Ward. In 1994, guardian petitioned the court for permission to sell tract 1 to appellee. Appellants contested the sale and the probate court denied guardian’s request. Also in 1994, and without the court’s permission, guardian executed a quitclaim deed purporting to transfer tract 2 to appellee. In 1995 guardian executed another quitclaim deed purporting to transfer tract 3 to appellee. The Ward died in 1995 and in the ensuing eleven years, appellee paid off a lien that HUD had placed on the property. After paying off the lien in 2003, appellee filed suit to quiet title. The court simply points to section 820 of the TPC and states that a guardian does not have authority to convey the property of a ward without approval from the probate court. Noting that the quitclaim deeds transferred “all the right, title, land, interest and claim” that guardian had, the court stated that without the court’s permission, guardian had no right, title, interest, or claim to either tract, and therefore, guardian conveyed nothing by the quitclaim deeds. HEADS UP! We often view guardianships as a last alternative in the care of an individual and this is why. The court will have to grant guardian authority to take certain actions on behalf of the Ward. This restrictive relationship is in place for the protection of the Ward. B.

DIPORTANOVA V. MONROE

This is actually a probate case addressing whether the filing of a declaratory action by a beneficiary violated an in terrorem clause. Guardian, on behalf of an estate beneficiary sought a declaration that trustees were authorized to fund a proposed gift to another beneficiary. The court stated that since the guardian did not seek to modify, vary, set aside, or nullify the terms of the codicils, that the guardian did not violate the in terrorem clauses.

HEADS UP! Remember, other family members and the court are watching the actions of fiduciaries. Keep this in mind in light of the Belt v. Oppenheimer ruling. V. EXAMINATIONS AND REPORTS

HEADS UP! Guardians have the authority to bring actions on behalf of the Ward, but remember that the guardian stands in the Ward’s shoes. Therefore, as a guardian you must be careful not to nullify anything for

A. KARLEN V. KARLEN Son filed for appointment of guardian of the person and estate of mom. Included with his application was a 3

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physician’s report of medical examination dated almost one year prior to the filing stating that mom was suffering from dementia and needing full time care. Son also filed a motion for an independent medical examination stating that his brother prevented him from access to mom. The trial court appointed an independent investigator and a guardian ad litem. Both appointees concluded that mom was not in need of a guardian. Mom then filed a motion to dismiss which the court granted. Son appealed arguing that the court erred in denying his request for an independent medical examination pursuant to TRCP 204 and TPC section 687(b). The court noted first that TRCP 204 does not apply to guardianship proceedings. TPC 687(b) gives the court discretion to appoint a physician to examine the proposed ward. The court ruled based on the discretion of the court. In pointing out that TPC section 687(b) states that if the court determines it is necessary, it may appoint physicians to examine a proposed ward. The court states that the legislature clearly intended to give trial courts some degree of latitude to factually determine whether it is necessary to appoint a physician to examine a proposed ward. Here, the court pointed to the testimony of the guardian ad litem stating that mom did not need a guardian, the report of the investigator stating that mom did not need a guardian, and the report of another physician stating that there was no evidence of incapacitation or the need for a guardian. Therefore, the trial court had substantial evidence in front of it supporting a ruling that a medical examination was not necessary and did not abuse its discretion.

ability to drive creating a danger to others and evidenced by three failed DPS administered driving tests. The parties submitted competing medical reports upon the hearing to appoint a guardian. Niece’s doctor, a neurologist, who examined Ward diagnosed mild dementia and probable Alzheimer’s disease based upon an MRI showing atrophy in the brain. The doctor certified that Ward was partially incapacitated. Ward’s doctor, a psychologist, examined him after these examinations by niece’s doctor. Ward’s doctor conducted the exam and then had lunch with him finding no need for a guardianship. The trial court found that Ward was partially incapacitated and appointed niece as guardian. Ward appealed challenging the sufficiency of the evidence to support the appointment of a guardian and that Ward did not waive physician-patient privilege with respect to his examination by the neurologist. The court cited TPC section 684 in showing what evidence the court must find before appointing a guardian. In dealing with the issue of error in allowing the examination report that was privileged, the court pointed out that Ward had not preserved this error. Specifically, he did not object when niece offered the certificate at the hearing. Ward’s attorney stated “We have no objection to the introduction of the documents.” Therefore, after review the evidence before it, including the Ward’s testimony, the trial court did not abuse its discretion in appointing niece as guardian. HEADS UP! If you want to preserve the error, you must object to the error at the proper time. With physician certificates this generally arises in the above scenario or with a hearsay objection. You must object at the time of introduction to preserve the error.

HEADS UP! It seems logical that the court must have discretionary power or else be bound to order a medical exam in all cases that petition for one. If you request a medical examination for a proposed ward, there needs to be some factual basis that the court can consider, and even then that could be outweighed by the evidence for no examination. B.

ROBINSON V. WILLINGHAM

Ward appealed the appointment of niece as permanent guardian of his person and estate. Ward was 79 years old and married. Ward executed a durable power of attorney to niece. Wife had Alzheimer’s disease and after wife fell ill niece was appointed her guardian Niece testified that Ward had become dangerous to those around him and uncharacteristically impulsive with his money including giving substantial amounts of money to women he barely knew or just met. There was also testimony regarding a severe decrease in Ward’s 4

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and the probate court did not appoint a new temporary guardian, the temporary guardianship expired by operation of law on July 6, 2001. Once the temporary guardianship expired, the court was only authorized to take those actions necessary to close the guardianship and discharge the temporary guardian. It was not authorized to further extend the temporary guardianship, transfer the underlying claims or convert the temporary to a permanent guardianship. The court distinguishes between the court not losing jurisdiction over an expired guardianship and that jurisdiction being limited by statute, citing TPC section 878 and 879.

VI. JURISDICTION A. IN RE GUARDIANSHIP OF GIBBS Siblings and mom were beneficiaries of a trust which stated that with the agreement of mom and three of the four children, additional funds could be removed from the trust for mom’s benefit. In fear of the impending Y2K scare, three of the children agreed with mom to withdraw $1,015,000 from the trust. With that money, approximately $701,000 went to purchase gold coins and other funds went to purchase food and other items in preparation of Y2K. Son was not informed of these withdrawals and filed suit for a constructive trust to be established and on May 7, 2001, filed an application for temporary guardianship over mom’s estate. On May 15, 2001, the trial court entered an order extending the temporary guardianship until July 6, 2001. On June 29, 2001, son filed an application to convert the temporary guardianship of mom’s estate to a permanent guardianship. Siblings never contested the temporary guardianship application but on July 13, 2001, they contested the application to convert the guardianship. On October 5, 2001, the trial court issued an order to extend the temporary guardianship until “further order of this court.” Included in the October 5 order was a transfer as an ancillary action to the guardianship action son’s restitution and breach of fiduciary duty claims. On April 27, 2004, the trial court ordered the temporary guardianship converted to permanent. On September 13, 2004 the underlying suit came to trial, the siblings did not attend and son was awarded $1060,799.21 in actual and punitive damages. Siblings appealed that the probate court had no subject matter jurisdiction over the restitution and breach of fiduciary duty claims since guardianship provided no jurisdiction for the probate court because it expired by operation of law on July 6, 2001. Son countered with jurisdictional arguments under TPC sections 5 and 5A and section 115.001(d) of the Texas Trust Code. The court stated that son’s claims for restitution and breach of fiduciary duty do not “involve” or “concern” trusts as those terms are used in the statutes. Therefore, son could not rely on TPC sections 5 and 5A or trust code section 115.001. Under TPC section 875(h), a temporary guardianship expires by operation of law sixty days after the guardianship is commenced, unless it’s contested within the sixty day period. If it is contested with that period TPC section 875(k) provides that the court may appoint a new temporary guardian. In this case, the sixtieth day was July 6, 2001. Since the siblings did not contest the temporary guardianship,

HEADS UP! Again, calender all the dates related to guardianship proceedings whether you think they will come into play or not. B.

IN RE OESTREICH

Guardian’s appointment by county court was challenged by family. Family also contested guardian’s motion for authority to act on behalf of the Ward. Family was lessee of real property under the guardianship estate and requested transfer to district court any contested matters. The motions were all resolved and with the district court finding that there were no contested matters before it, it referred the entire case back to county court. Guardian filed suit against family in county court and included a motion requesting appointment of a statutory probate court. The probate court refused to hear the suit. The district court ordered that it retained jurisdiction of all contested matters herein and specifically this suit. The court cites TPC section 606 as the basis for guardianship proceedings stating that the county court has jurisdiction when there is no probate court or county court at law. It then points to the exception that the county court may on a motion transfer to district court the contested portion of the proceeding. After a transfer, the county court continues jurisdiction over the management of the guardianship with the exception of th contested matter until final disposition is made by the district court. Citing TPC section 606(b-3) the court states that on resolution of the contested matter, the district court shall transfer the resolved portion of the case to the county court. Therefore, the TPC imposes a duty on the district court to return the resolved portion of the proceeding to the county court. In this case, since the district court transferred the proceeding back to the county court, the district court was divested of jurisdiction. HEADS UP! Jurisdiction is a threshold matter. Know 5

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the rules and how your case fits into the parameters of the TPC jurisdiction section.

guardianship law this year is HB 417 which as of this writing has made it out of committee. Changes can and will be made, but you may follow its progress via the web and you can find links to the Texas Legislature at texasprobate.com. HB 417 addresses several issues including attorneys acting as guardian only able to charge their attorney rate for legal services, and issues relating to joint managing conservators and co-guardians. Word also has it that the Legislative Council is about to embark upon codification of the TPC. So, get ready for things to look different.

C. IN RE MOON Application for appointment of guardian, and several claims and cross-claims, and motions filed. The relevant part to our discussion is the court citing TPC section 745(a)(2) and pointing out that when a ward dies, the probate court loses jurisdiction of the guardianship matter, except for the filing of the final accounting and closing of the guardianship. D. IN RE MASK Ward appealed order granting temporary limited guardianship of her person and estate. Ward’s grandsons filed an emergency application for appointment of temporary guardian asserting that Ward an incapacitated person. The next day, the trial court signed an order appointing grandsons temporary guardians and authorizing them to spend up to $10,000 of Ward’s assets. However, it is undisputed that Ward was not notified of the application for temporary guardianship or the hearing as required by the TPC. When Ward found out about the proceedings, she brought a mandamus action. The court looks to jurisdiction for its reasoning stating that for a trial court to have jurisdiction over a party, the party must be properly before the court. The court further shows that the TPC does not authorize an ex parte or interim appointment of a temporary guardian pending the resolution of an application. According to TPC section 875, a respondent in a temporary guardianship proceeding must be served with notice before a hearing is held on the application. According to TPC section 874, a person for who a temporary guardian is appointed “may not presumed to be incapacitated.” Therefore, the court had no jurisdiction over Ward, and the order appointing temporary guardianship was rendered void. HEADS UP! Where to start? We don’t live in a facist regime. When you are attempting to take somebody’s rights away, they need to know about it before it happens. Otherwise, I fear that college aged children across Texas will run to the courthouse to get access to mom and dad’s money. VII. LEGISLATIVE HEADS UP The primary piece of legislation affecting 6