Who Will Take Care of You? One of the Most Important Decisions People May Face and The Legal Issues That Surround Such a Decision.

Who Will Take Care of You?
One of the Most Important Decisions People May Face and The Legal Issues That Surround Such a Decision.   
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Scott Seidl


According to the United States Census Bureau, by 2030 older Americans (defined as 65 years or older)  will make up 21 percent of the population, up from 15 percent today.  By 2060, nearly one in four Americans will be 65 years and older, the number of 85-plus will triple, and the country will add a half million centenarians.  In addition to the other issues caused by an aging population, it is reasonable to expect that we will see a sharp uptick in the number of guardianships sought in Texas’ probate court system.  While not every older Texan will require the appointment of a guardian in their latter years, given the sheer number of aged individuals will increase the number of applications for guardianships.  The most important question will be who do you want to serve as your guardian should you become incapacitated (and perhaps who do you not want to serve in that role)? 

 In an ideal world, all of us will have executed a written declaration to designate who will serve as our guardian should the need ever arise.  More on written declarations can be found in Subchapter E of Chapter 1104 of the Texas Estates Code or by reaching out to an estate and guardianship attorney for an explanation of and guidance through the process of selecting your preferred guardian.  

There will always be circumstances where the court appointment of a guardian is necessary.  In fact, a court will not appoint a guardian without the applicant showing the threshold necessity.  However, the legislature has given courts broad latitude in determining who is suitable to serve as guardian should the necessity exist.  The legislature has also created an order of preference when two or more eligible persons seek to become someone’s guardian.  Estates Code § 1104.102.  It is important to note that a written declaration will typically supersede the statutory order of preference found in § 1104.102.  

The written declaration provides prima facie evidence that the declarant (now proposed ward) was competent at the time the declarant executed the written declaration, and the guardian named in the written declaration would serve the best interests of the ward or incapacitated person.  Estates Code § 1104.209.  Accordingly, in the event a contest regarding the order of preference were to arise, a written declaration would very likely control who is appointed as guardian.

Even if a written declaration exists, Subchapter H of Chapter 1104 of the Texas Estates Code provides various grounds for disqualification of a proposed guardian.  These grounds for disqualification include what one would expect: being a minor, convictions of certain crimes, the existence of a conflict of interest between the proposed guardian and proposed ward, disqualification of the proposed guardian by the written declaration, lack of a guardianship certificate, a non-resident of the State of Texas without designation of a registered agent or being subject to a protective order for family violence.  Estates Code § 1104.351, 353 – 358.  There are two additional grounds for disqualification that, in our experience, lead to the majority of the disputes regarding a proposed guardian’s ability to qualify and be appointed as guardian. 

The first is found in Section 1104.351 and states “[a] person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the person or estate of the ward.”  Estates Code § 1104.351(2). The second is found in Section 1104.352 and states “[a] person may not be appointed guardian if the person is a person, institution, or corporation found by the court to be unsuitable.” Estates Code § 1104.352.  The lack of specificity in these two code sections, especially Section 1104.352, is frequently relied upon by those seeking to challenge a proposed guardian’s application for the appointment of a guardian.  These code sections also give a trial court tremendous latitude in finding a proposed guardian unsuitable and disqualifying them from serving as guardian.   

There is surprisingly very little case law on the interpretation of Sections 1104.351 and 1104.352.  It is clear that “a probate court has broad discretion in selecting a guardian “according to the circumstances and considering the incapacitated person’s best interests.”  Estates Code § 1104.101.  Accordingly, disqualification under sections 1104.351 and 1104.352 often involves a fact-intensive analysis that depends heavily on the circumstances of a particular case.  And if one is aggrieved by an unfavorable outcome, a court’s ruling will not be disturbed unless an abuse of discretion can be shown to an appellate court.  See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985) (“[a] trial court abuses its discretion when it acts without reference to any guiding principles”); see also In re Fuentes, 506 S.W.3d 586, 593 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“Legal and factual sufficiency of the evidence are not independent grounds for asserting error. Instead, these are relevant factors in assessing whether the court abused its discretion, and we determine whether the court had sufficient information on which to exercise its discretion and whether it erred in its application of that discretion”).  Thus, if a proposed guardian’s suitability is challenged, a very prolonged and discovery intensive lawsuit will likely follow. 

If you find yourself in need of the appointment of a guardian for a loved one, need to defend against the appointment of an unqualified guardian or need to secure a written declaration to help ensure that your preferred guardian is appointed should the need ever arise, you should seek guidance from an experienced guardianship attorney.   


ABOUT THE AUTHOR: Scott Seidl is Counsel at Rapp & Krock, PC in the Litigation group and the Probate, Estates, Elder Law, and Trusts group.


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