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How to Apply for Guardianship in Dallas County | Ellen Williamson | Guardianship | Farrow-Gillespie Heath Witter LLP

How to Apply for Guardianship in Dallas County

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This article was originally published by UNT Dallas College of Law on January 1, 2020.

The process to apply for permanent guardianship in Dallas County can often be a complicated process. The process for applying in Dallas County is as follows:

1. The applicant files an application for appointment of permanent guardianship with the certificate of medical examination (“CME”) as a separate document. The CME contains sensitive details about the proposed ward and is not available on the public court records website.1

2. A file-stamped copy of the application must be personally served on the proposed ward and served by certified mail on certain other family members. If applicable, the administrator of the facility where the ward resides must also be served by certified mail.2 Further, the applicant must file a certificate confirming that all interested parties were properly noticed.3

3. The applicant must post a $400 deposit with the Clerk for the attorney ad litem’s fee, unless an affidavit of inability to pay costs is on file.

4. The proposed guardian(s) (usually the applicant(s)) must register with the Texas Judicial Branch Certification Commission (“JBCC”) to undergo a criminal background check and complete an online training module.4

  • The JBCC forwards the background check results to the court in which the guardianship application is pending. The results must be on file at least 10 days before the hearing on the application can take place.
  • The proposed guardian must also file the certificate of completion of the training module with the court.

5. The court appoints a Court Investigator who meets with the proposed ward and applicant, then prepares and files a report.5 The Court Investigator acts as the eyes and ears of the court.

6. The court appoints an attorney ad litem to represent the proposed ward’s legal interests.

7. The attorney ad litem investigates, interviews the proposed ward, and files an answer on behalf of the proposed ward.6

8. If appropriate, the attorney ad litem may make a Motion for Appointment of a Guardian Ad Litem to speak to the proposed ward’s best interests, which may not coincide with the proposed ward’s legal interests.7

9. The court holds a hearing on the guardianship application.

10. If the application is granted, the Judge signs an order appointing the guardian.8

11. Upon appointment, the guardian takes an oath and posts a bond. Bonds for guardians of the person are typically $100-$500, depending on the Court. Bonds for guardians of the estate must be corporate surety bonds with the amount based on the estate size.9

Upon qualification, the guardian may then receive Letters of Guardianship (i.e., their “badge”) to show that they have authority to act on the ward’s behalf.10

For a general overview of guardianship, please visit: https://www.fghwlaw.com/overview-of-guardianship/.

Ellen Williamson is of counsel at Farrow-Gillespie Heath Witter LLP. She has more than fifteen years of experience as an attorney, and practices probate, estate planning, and guardianship law. She was selected as one of “DVAP’s Finest” for her pro bono volunteer efforts through the Dallas Volunteer Attorney Program; she is a member of the Dallas Bar Association Probate, Trusts, & Estates section; a member of the estates manual committee; and a former co-chair of DAYL Elder Law Committee. Ms. Williamson assists with the creation and delivery of many continuing legal education programs for attorneys and enjoys speaking about estate planning and probate topics for senior groups and others. She earned her J.D. from SMU Dedman School of Law.

Sources

1 Tex. Est. Code Ann. § 1101.001; Tex. Est. Code Ann. § 1101.103.
2 Tex. Est. Code Ann. § 1051.101-203.
3 Tex. Est. Code Ann. § 1051.104(b)
4 Tex. Govt. Code § 155.151; Tex. Est. Code Ann. § 1104.404; Tex. Est. Code Ann. § 1104.003
5 Tex. Est. Code Ann. § 1054.151-153.
6 Tex. Est. Code Ann. § 1054.004.
7 Tex. Est. Code Ann. § 1054.151; Tex. Est. Code Ann. § 1054.154.
8 Tex. Est. Code Ann. § 1151.151-152.
9 Tex. Est. Code Ann. § 1105.001-002.
10 Tex. Est. Code Ann. § 1106.001.

Farrow-Gillespie Heath Witter LLP | Guardianship Law | Dallas, TX

New Guardianship Requirements

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This article was originally printed in Dallas Bar Association Headnotes, December 2018

On June 1, 2018, new statewide guardianship requirements took effect for those seeking to be appointed as a guardian. These new requirements are administered through the Judicial Branch Certification Commission (JBCC), the state agency tasked with overseeing guardians and guardianship programs.

The new requirements regarding registration, criminal background check, and training arise from a statewide audit of guardianship cases that revealed a high percentage of cases out of compliance and follow the trend in recent years toward increasing requirements for guardianships.

While implementation of the new guidelines may vary by Court and may evolve over time, current guidelines for Dallas County Probate Courts are as follows:

Registration

Prior to any hearing on a guardianship application, a proposed guardian must register with JBCC either online or by paper form. The registration form requests information about:

  • the proposed guardian, including name variations;
  • the proposed ward;
  • the proposed guardian’s attorney;
  • the guardianship case and Court in which it is pending;
  • the type of guardianship; and
  • the liquid assets held by the estate.

The form also asks questions relating to the proposed guardian’s character and any disqualifying history.

Criminal Background Check

Upon receipt and review of the registration form, JBCC determines which type of criminal background check is required. If both 1) the proposed guardian is a Texas resident and 2) the proposed ward’s liquid assets do not exceed $50,000, a name-based criminal history is sufficient. If, however, either the liquid estate exceeds $50,000 and/or the proposed guardian resides out of Texas or out of country, a fingerprint-based criminal history is required. When a fingerprint check is required, JBCC sends information to the proposed guardian about obtaining digital fingerprinting through the Texas Department of Public Safety (DPS). The DPS fingerprint results are sent to JBCC.

JBCC submits the background check results to the clerk of the county where the guardianship application is pending. The background check must be delivered to the Court at least 10 days before the hearing on the application for guardianship. Given JBCC’s high volume of registrations and background checks to process, the applicant’s attorney is advised to submit the registration forms and, as appropriate, obtain digital fingerprints, with sufficient lead time to ensure that proof of compliance is received timely by the Court.

The new JBCC criminal background check takes the place of the background checks which had previously been handled in Dallas County by the Probate Court Investigator’s Office. However, currently the Court Investigator’s office is still processing background checks on temporary guardianships.

Training

The third new requirement imposed upon proposed guardians and guardians is completion of the guardianship training module on the JBCC website. The training module covers topics including reasons why guardianship may be necessary, alternatives, types of guardianship, procedure to establish, duties and reporting requirements of guardians, and modifying, terminating, or closing a guardianship. After completion of the training, the proposed guardian receives a certificate which must be filed with the Court.

Section 1104.003 of the Texas Estates Code states that a Court may not appoint a proposed guardian who has not completed the training unless waived by the Court. Presently the training is only available online and in English, though JBCC anticipates making it available in other forms and languages. Until alternatives are available, waivers may be granted to applicants who lack internet access or do not speak English. Some Courts may allow the hearing but delay signing the Order until the training certificate is filed.

For new permanent guardianships, the training must be completed prior to appointment. For new temporary guardianships, the training must be done within 60 days of appointment.

Existing Guardianships

For guardianships granted prior to June 1, 2018, the registration and training must be completed prior to renewal of Letters of Guardianship.

Integration into Your Practice

At the initial consultation, you may wish to provide the following to your client:

  1. a letter detailing the steps for registration, training and the background check;
  2. the paper JBCC guardianship registration form;
  3. a copy of the Bill of Rights for Wards;
  4. the Minimum Standards for Guardianship Services;
  5. the Dallas County Guardianship Case Information Sheet;
  6. the Dallas County Guardianship Questionnaire; and
  7. a list of links to resources and guides for serving as a guardian.

Once the Application for Appointment of a Guardian of the Person and/or Estate is filed, ensure your client promptly registers, obtains the background check, and completes the Court Investigator’s forms. These steps must be completed before the Court Investigator will visit the proposed ward and file their report.

Guardianship attorneys should familiarize themselves with these new requirements and advise clients about them early in the guardianship application process. By doing so, attorneys can avoid delays in their clients’ applications and ensure that clients are well-informed about their responsibilities as guardians.

Ellen Williamson is of counsel at Farrow-Gillespie Heath Witter LLP. She practices probate law, guardianship law, and estate planning. Ms. Williamson assists with the creation and delivery of many continuing legal education programs for attorneys and enjoys speaking about estate planning and probate topics for senior groups and others. She earned a J.D. from SMU Dedman School of Law.

Brian D. Hill practices at Law Offices of Brian Hill, PLLC. Ellen and Brian prepared this article for the Dallas Bar Association’s Headnotes publication after delivering a presentation about the new guardianship requirements to the September meeting of the DBA Probate, Trusts, & Estates Section. For more information on attorney Brian Hill, please visit https://www.brianhillattorney.com/. 

Probate Law - Farrow-Gillespie Heath Witter LLP - Dallas, TX

The Texas Probate Process for a Valid Will

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The Executor of a Will has the responsibility of submitting the Will for probate.  Under the rules of the probate courts, an individual desiring to probate a Will must be represented by an attorney; and the attorney must appear in court on behalf of the executor of the will whenever a court appearance is required.  The first steps an Executor should take are (1) finding the Will and putting it in a secure place; and (2) contacting a probate attorney.

If a Texas Will properly provides for an Independent Representation, the role of the probate court (and thus the expense to the estate) is minimized — and the procedure is quick and easy.  If the Will is in order, and no will contest is filed, the Will can be probated in as little as two or three weeks, at a fixed fee.

Assuming that there is no will contest or other significant delay or complexity, the usual procedure for probate and administration of a valid Texas will naming an independent executor is as follows:

  1. As your attorneys, we file the original will and an application for probate with the probate court.
  2. A 10-day waiting period ensues while the court publishes notice that the will has been filed.
  3. After the 10-day waiting period, a hearing is held on the application for probate.
  • The Executor of the will (or someone close to the decedent whom the Executor designates) must accompany us to the hearing.
  • If the will is being probated in Dallas County, the hearing is held on the 2nd Floor of the Records Building, on the corner of Main Street and Houston, in downtown Dallas.
  • The Executor must testify as to the date of death and other facts.  We will go over the testimony with the Executor in advance of the hearing, and we will answer any questions that the Executor has about the hearing or any other aspect of probate.
  • To serve as Executor, a person must not be
    • a legally incapacitated person;
    • a convicted felon;
    • a non-resident of Texas, unless the person appoints a resident agent in this State; or
    • a person whom the court finds unsuitable.
  1. The Executor must sign the Executor’s Oath, which will be notarized and filed with the court clerk.
  2. After the hearing and the filing of the Oath, the court clerk will issue “Letters Testamentary.”  The Letters Testamentary are certified documents that serve as authority for the Executor to do everything that must be done – e.g., transfer title to property, access bank and brokerage accounts, sell assets, distribute cash and other assets to the beneficiaries, etc. — to administer the estate.
  3. We will send the following notices; and we will then file with the court clerk proof that the notices were sent:
  • Mandatory published notice (in the Daily Commercial Record) to general unsecured creditors.
  • Mandatory notice by certified mail, and a copy of the will, to each of the named beneficiaries.
  • Mandatory notice by certified mail to each secured creditor, such as mortgage holders.
  1. The Executor must arrange for a final tax return to be filed for the decedent, and possibly for a tax return to be filed on behalf of the estate.  We can recommend a CPA for those tasks, if you do not already have one who is experienced in filing estate returns, or we can do the returns ourselves, as you prefer.
  2. The Executor must contact all insurance companies with which the decedent held life insurance policies, and all institutions at which the decedent held retirement accounts, to ascertain whether the proceeds are probate assets or non-probate assets.  We will do these tasks for you if you prefer; and we can advise how to distribute the proceeds from these assets.
  3. The Executor is responsible for making a written Inventory of the estate.  We can assist in this process to whatever degree the Executor prefers.
  4. In the event the deceased person owed money to creditors, and the creditors file a valid claim with the Executor, the Executor must pay those valid claims out of the estate’s funds.
  5. After the Inventory is completed and filed (or an affidavit of completion and delivery is filed instead), and valid creditors are paid, the Executor must proceed to carry out the terms of the will.  The Executor may need to sell certain assets, but in any event, the Executor must transfer and distribute all of the bequests to the named beneficiaries.  We can assist you in that process at an hourly charge, including drafting any deed transfers or other documents that are necessary.  Once Letters Testamentary are obtained in an Independent Representation, no permission from or involvement by the court is necessary to sell any of the assets, or to distribute the bequests. However, the Executor should keep good records of every transaction; and in some estates, it is a good idea to obtain receipts and releases from each beneficiary as his or her distribution is completed.
  6. Once the terms of the will are satisfied, the process is complete. Nothing further needs to be filed with the court.