In a Texas guardianship arrangement, a guardian is appointed and vested with the legal authority to make certain decisions on behalf of someone else (known as the ward), even over the ward’s objections. The guardian may be authorized to make financial decisions for the ward or personal decisions such as where the ward will live.
A ward may be a child who is incapable of making his own decisions or an adult who is incapacitated by illness or dementia. Texas guardianships are regulated by the courts. And in a guardianship proceeding, the court will appoint certain officers to assist it in its adjudication of the guardianship application.
The Attorney ad Litem
A court must appoint an Attorney ad Litem in any guardianship proceeding. The purpose of the Attorney ad Litem is to represent the legal interests of the proposed ward. In other words, the Attorney ad Litem is assigned to serve as the ward’s lawyer. A lawyer must obtain a special certification from the State Bar of Texas to be eligible for appointment as an Attorney ad Litem.
The Attorney ad Litem’s Fiduciary Duties
The Attorney ad Litem is subject to the following fiduciary duties with respect to the proposed ward:
- Confidentiality: Attorney-client privilege applies to the relationship between the Attorney ad Litem and the proposed ward. Communications between them are confidential by law, and the Attorney ad Litem cannot be forced to divulge a confidence – even if requested by the court.
- Loyalty: Even if the ward is mentally incompetent, the Attorney ad Litem is obligated to attempt to accomplish the ward’s purposes. For example, if the ward opposes the guardianship, the Attorney ad Litem must also oppose it. Since a guardianship application seeks to take away some of the rights of the proposed ward, the Attorney ad Litem’s job is to make sure they are not taken away unfairly.
- Zealous advocacy: The Attorney ad Litem must exert his best efforts and “fight to the finish” on behalf of his client.
The Guardian ad Litem
In a guardianship proceeding, the court can appoint a Guardian ad Litem to act on behalf of the proposed ward. The court is not required to appoint a Guardian ad Litem but will do so if it sees a need for one. Like the Attorney ad Litem, the Guardian ad Litem must be an attorney and must maintain a special certification from the state bar in order to be eligible for his appointment.
The Guardian ad Litem’s job is to protect the “best interests” of the proposed ward. Remember that the Attorney ad Litem’s job is to protect the proposed ward’s legal interests, which are not always the same as the ward’s “best interests.” Consequently, it is possible that the Attorney ad Litem and the Guardian ad Litem might come into conflict with each other.
The relationship between the Guardian ad Litem and the proposed ward is similar to the relationship between parent and child. The Guardian ad Litem is not bound by a confidentiality obligation, and he is not required to follow the proposed ward’s desires if he does not believe it is in the ward’s best interests to do so.
The Court Investigator
Unlike the other two officers, the Court Investigator does not represent the proposed ward – he represents the court. Not all Texas courts use Court Investigators. The Court Investigator will interview:
- The proposed ward
- The proposed guardian’s attorney
- The proposed ward’s family members
- Social workers who know the proposed ward
- Anyone else whose input might be relevant (the proposed guardian’s family members, for example)
After completing his investigation, the Court Investigator will submit an investigation report to the court. It will include a recommendation on whether to approve or reject the guardianship application. The Court Investigator will only recommend the guardianship if there is no less restrictive means of accomplishing the purposes of the guardianship.
Although the court is free to ignore the court investigator’s recommendation, it typically carries great weight and the guardianship application may be rejected if the Court Investigator does not support it. If the application is approved, the Court Investigator will manage the Court Visitor Program that provides long-term court supervision of guardianship arrangements.
Terms of Office
The foregoing court officers are not appointed for a specific term – they serve until the court either:
- Appoints a guardian;
- Appoints a successor guardian (if that is the purpose of the proceeding); or
- Denies the guardianship application.
At that point, the officers’ appointments naturally expire – except that the Court Investigator’s obligation to manage the Court Visitor Program continues.
Attorney ad Litem and Guardian ad Litem Certification Requirements
As mentioned above, the State Bar of Texas requires special certification for any attorney to be appointed Attorney ad Litem or Guardian ad Litem in a guardianship proceeding. To be certified, the attorney must complete a training course approved by the State Bar of Texas. The instruction must cover the following topics, among others:
- Applicable law relating to Texas guardianships
- The aging process and the nature of various disabilities
- The Americans with Disabilities Act and its implications for a guardianship
- The principle of equal access
Optional topics include:
- Legal topics relating to the needs of the elderly and the disabled
- Communication needs of the elderly and the disabled, and how to use various communication tools
- Duties of guardians, guardians ad litem, attorneys, and court personnel
- Standards for determining incapacity
- Standards for surrogate decision making
- Less restrictive alternatives to guardianship
- Dispute resolution for the elderly and disabled
We Are Ready to Help
Establishing a guardianship is a serious decision that has lifelong ramifications. If you are considering establishing or opposing a guardianship or if you are examining alternatives to guardianship, you are going to need the help of a prominent Texas guardianship attorney to maximize your chances of success.
The guardianship lawyers at Romano & Sumner represent clients throughout Sugar Land and all of Fort Bend County. Contact us today to schedule a free initial consultation by calling (281) 242-0995 or by filling out our online contact form.