Guardianship Case Law

By October 29, 2015Articles
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Guardianship Case Law Update, By K.T. Whitehead, as presented at the Texas State Bar Seminar, Spring 2003, copyright, K.T. Whitehead, 2003



There are very few published guardianship decisions. Several factors may contribute to the lack of case law. First, the guardianship statute was revised in 1993, clarifying many areas and codifying others where controversy has arisen in the past. The 1993 overhaul of the guardianship code codified or overturned much of the early case law. Thus when researching in this area, one must first look to the statute and filter the case law through the new code, being careful not to use old case law which has been modified or overturned by statute.

Second, the statute addresses the vast majority of the guardianship issues. The probate, county and district courts which handle guardianship cases appear to use the statute to guide their decisions.

The courts hearing guardianship matters usually are probate courts or county courts at law, which oversee the administration of probate and guardianship proceedings. The dependent administrations in both areas are just that, administration. These proceedings handle the day to day management of personal affairs. So a third factor limits appeals; the vast majority of these matters are not contested and involve only one party.

Fourth: one party, the proposed Ward, is usually incapacitated in a guardianship matter. By statute, the proposed Ward has court appointed counsel. Right or wrong, once the initial trial phase has ended, the counsel for the Ward is usually discharged. Thus, the ability of the Ward to challenge the court’s ruling is limited. It is unclear if the attorney ad litem has a duty to appeal if the client requests, though it is generally assumed that the ad litem should. To do so, the attorney ad litem would most like need to seek court permission. The attorney ad litem has the duty to advocate. The trial court, having ruled on incapacity, would take into consideration the capacity of the Ward to direct the pursuit of such appeals.

If the Ward seeks private counsel, counsel would have public notice that the Ward may be incapacitated and would pursue such representation at his or her own peril. In most guardianships, the right of the Ward to contract is terminated in the order appointing a Guardian. (The statute does, under limited circumstance, allow the Ward to hire counsel to seek restoration. TEX. PROB. CODE ANN. §§694A-694G (Johanson 2002).) The avenues of appeal and further trial are limited as the Ward lacks counsel.

The majority of the following cases are appealed by a contestant, other than the Ward, in the guardianship proceeding. There are spectacular guardianship contests, noteworthy because of the depth of emotion of various family members and the proposed Ward, which cause old family roles and emotions to be aired in court. However, the vast majority of guardianship cases are uncontested. Guardianships are usually initiated by necessity when there is no other way of managing financial affairs or personal care decisions. The need to appeal and thus create new case law is minimal.

For all of these reasons, there is very little case law. The following cases are from September 1, 1993, (the enactment of the current guardianship code) through January 2002. These summaries are meant to give the reader a starting point, not a comprehensive interpretation.


In re Guardianship of Soberanes, No. 04-02-00119-CV, 2002 Tex. App. WL 31863704 (San Antonio December 24, 2002, no pet. h.) (not designated for publication).

Marcello Quintanilla Soberanes (“Marcello”), a Mexican citizen, was released unexpectedly from a Laredo hospital to his daughter from his first marriage, Maria Cristina Quintanilla de Sanchez (“Sanchez”). Sanchez immediately sought and was granted temporary guardianship. Between the granting of the temporary guardianship and the ten day hearing which extended the temporary guardianship by agreement between Sanchez and the ad litem, notice did not issue to Marcello’s wife Marta Verges de Quintanilla (“Marta”).

The guardianship was set for hearing on the permanent guardianship. Marta and her children were served notice prior to this setting. At the hearing, Marta filed motions in limine alleging that Sanchez was unsuitable and had claims adverse to Marcello. Marta also filed a contest requesting that she be named Guardian. The court held a brief hearing, not ruling on the motions in limie nor the contest for permanent guardianship.

The court continued the status quo and reset the matter. The court did order that Marta be allowed to visit her husband. After attempting to visit her husband, Marta filed an emergency motion claiming that her visit was limited to only five minutes and that verbal and physical abuse occurred. Again, the court deferred ruling on the motion until all parties were served with Marta’s emergency motion.

At the next hearing, the ad litem asked for a continuance as his client had suffered a relapse and could not be present. The court granted the motion for continuance and restated the visitation privileges and ordered that Marcello remain in Laredo, Webb County, Texas.

Sanchez changed counsel. New counsel for Sanchez filed a motion to terminate temporary guardianship on the grounds that Marcello was now in Mexico. The court ruled from the bench that it was terminating the guardianship on the grounds that Marcello had left the state of Texas and the court no longer had jurisdiction. A final judgement was signed. Marta appealed.

The court of appeals precluded itself from ruling on the trial court’s failure to remove the temporary Guardian as the trial court had not ruled on the motions in limine requesting the removal of the temporary Guardian.

Sanchez argued to the court of appeals that the temporary guardianship expired on September 12, 2001, sixty days after it was granted. The appellate court, citing Texas Probate Code § 875(k), found that the temporary guardianship continued because of the contest filed by Marta.

The court of appeals overturned the trial court’s finding of no jurisdiction stating that jurisdiction attaches when the application is filed. The court cited the reasons outlined in the Texas Probate Code under 694 (expiration, death, regaining of capacity, reaching majority or representative payee status) as the reasons for closing a guardianship. Nothing in the Probate Code supports the proposition that a Ward’s absence from the jurisdiction alone is grounds for terminating a temporary guardianship.” 2002 WL 31863704 at *3. . The court goes on to say that this is especially true under the circumstances presented here, where the temporary Guardian submitted herself and the Ward to the court’s jurisdiction…”Id. at *3.

The appellate court overruled the dismissal of the guardianship and found that the hearing should have proceeded on the appellant’s Motion to Remove Temporary Guardian, Motion in Limine and the Application for Permanent Guardianship.

Note: While not the main issue, the trial court assessed attorney fees for the ad litem against both applicants. The court overruled the fees assessed against Marta and remanded the issue for further hearing as there is no statutory basis for these fees. Since Sanchez did not appeal this issue, the court left in place the order that she pay $3,000 of the ad litem’s fees

Practice Tips:

1. If a motion is scheduled, try to create a record by requesting a ruling on motions which are set.

2. Moving the Ward will not effect the court’s jurisdiction. When the Ward is moved across county, state or national boundaries, this case along with section 611 of the Texas Probate Code should help protect the rights of the Ward and other parties from cross-border games.

3. When filing a guardianship, the Texas Probate Code §§ 605-606 and 610-611 gives several options for venue and jurisdiction. Think through the options before filing. Once a guardianship or ancillary action is filed, the options are limited to the court’s discretion.

Guardianship of Whitcomb, 69 S.W.3d 826 (Tex. App.-Corpus Christi 2002, no pet.). (Whitcomb II)


Guardianship of Whitcomb, 35 S.W.3d 220 (Tex. App-Corpus Christi 2000, no pet.). (Whitcomb I)

Whitcomb I

Two daughters, Anna and Kathryn, filed suit to have a Guardian appointed for their father, Warren Dowling Whitcomb (“Whitcomb”). The trial court appointed the daughters as limited co-Guardians. Whitcomb, the Ward, appealed the co-guardianship appointment and several other points including: finding that it was unnecessary to hire appraisers; that the bond was insufficient; and the finding of partial incapacity. Between the time of the trial and the appeal, one of the daughters resigned leaving only a single Guardian.

The court of appeals reversed and remanded the case, finding that the probate code in clear language allows only one Guardian. The court of appeals found that the order was not void, but voidable, on the issue of co-Guardians. At the time of the appeal, the trial court had not ruled on the resignation of one of the Guardians. Thus, the order had not been modified to reflect only one Guardian. The court of appeals reversed and remanded the case with instructions to vacate the order appointing co-Guardians.

Whitcomb II

On remand, the trial court accepted the resignation of one of the Guardians. The Ward appealed stating that he was entitled to a new trial and, additionally a jury trial. The court of appeals agreed with the Ward, giving the following basis: If a new trial was not had, the other issues of the first appeal would not be addressed. The record indicated that the Ward was not present and there were no findings as to why he was not present when the resignation of the Guardian was accepted. This was a clear violation of Texas Probate Code § 829 which entitles the Ward to be present unless there is a finding that the Ward is not able to participate in the hearing. In this matter the trial court had made no such finding.

A proposed Ward is entitled to a jury trial; and the court must give “reasonable consideration” to the proposed Ward’s preference for Guardian.

Practice Tips:

1. In this case, “reversed and remanded” means new trial which, if requested, includes a jury trial.

2. The procedural structure of the probate code is not discretionary. Provisions regarding a jury trial and Ward’s preference must be followed. Deviations from these provisions should be noted in the record. Texas Probate Code § 643.

3. When drafting guardianship orders, make sure that all required findings are in the order, like why the Ward is not present at the hearing. Texas Probate Code § 684.

Edwards v. Pena, 38 S.W.3d 191 (Tex. App.-Corpus Christi 2001, no pet.).

Prior to her death, C.A. Edwards (“Edwards”), Hazel Edwards’ (“Hazel”) step-son, had served as Hazel’s Guardian. Shelly Pena (“Pena”) had served as Hazel’s personal assistant and secretary prior to the guardianship. After Hazel’s death, Pena sued the Guardian for breach of fiduciary duty. In marshaling the assets, the Guardian redeemed a CD which listed Pena as co-owner and listed the new CD in Hazel’s name only. Pena claimed the Guardian had wrongfully deprived her of a gift. Edwards counterclaimed that Pena breached her fiduciary duty to Hazel by depleting her estate through fraud, undue influence and duress. At trial, the jury found that the CD had been given to Pena and that EdWards had committed conversion and fraud by taking the CD from Pena.

In an interesting but unsuccessful argument, the Guardian claimed judicial immunity for his actions, stating that he was appointed by the court and thus all of his actions as Guardian were protected by judicial immunity. While this is a pleasant thought for those who serve as Guardian, the court of appeals found that judicial immunity attaches in a functional sense only when the appointee is preforming activities that are “normal functions of the delegating or appointing judge.” 38 S.W.3d at 196. The court of appeals found that a Guardian’s actions are not functions of the court and that “a Guardian may be held liable for failing to exercise due diligence in collecting all claims and debts due the Ward and recovering the Ward’s property.” Id. at 196.

Edwards argued, and the court of appeals agreed, that a completed gift had not been made when Hazel added Pena’s name. Edwards argued that Hazel had not divested herself of ownership when Hazel added Pena’s name as she still had the power to exchange or cash the CD at any time.

The court reviewed the five-part definition of fraud and found that the Guardian did not commit fraud when he retitled the CD in the Ward’s name. The gift was incomplete and Pena owned nothing; therefore, Pena had lost nothing.

Practice Tips:

1. While this case rejected the “gift” theory, many people do their estate planning through account titling. A Guardian should take care to verify and document account titling as well as balances of accounts when preparing the inventory and final accounting.

2. A wise Guardian would request court’s permission to spend pro-rata from the various accounts to maintain the Ward’s plan and prevent future litigation in this area.

In re Guardianship of Norman, 61 S.W.3d 20 (Tex. App.-Amarillo 2001, pet. denied).

Edna Hazelwood (“Hazelwood”) filed for guardianship of Esther L. Norman (“Mrs. Norman”). Pat Green (“Green”) was appointed ad litem. Robert Norman, Mrs. Norman’s son, joined the ad litem in contesting the guardianship. Green and Robert moved to dismiss the guardianship claiming Mrs. Norman was not incapacitated and had alternate planning in place even if she was incapacitated.

At a hearing on the motion to dismiss the guardianship brought by the ad litem, the court allowed the ad litem to read into the record the doctor’s statements and to give his personal opinion about the Ward’s capacity.

Hazelwood’s attorney objected and restated the request for a jury trial. Despite the protestations, the trial court found that there was insufficient evidence to establish incapacity and declared that Mrs. Norman was not an incapacitated person. Hazelwood appealed.

On appeal, the court of appeals found, citing section 643 of the Texas Probate Code, that any party to a guardianship proceeding “is entitled, on request, to a jury trial.” 61 S.W.3d at 23. On appeal, Green argued that the court has the authority to hear the case, make a preliminary determination that there is incapacity, and move foreword to a jury trial only if there is incapacity.

The court of appeals found this to be absurd and that it would result in a double trial. The appellate court found that section 692 must be read with 693 of the Texas Probate Code. The court of appeals reasoned that there must first be a finding of incapacity before the court can dismiss. Once a jury is requested, only a jury can make a finding of incapacity.

Practice Tip:

It appears this case precludes the court from finding that an applicant has failed to make a prima facie case when an allegation of incapacity is made. A powerful tool in a guardianship proceeding is the request for a jury trial.

Woollett v. Matyastik, 23 S.W.3d 48 (Tex. App.-Austin 2000, pet. denied).

Milam County Court on its own motion transferred a contested guardianship matter to district court in accordance with section 606 of the Texas Probate Code. At a preliminary hearing the district court appointed a temporary Guardian with authority to expend up to $50,000.00 from “the Ward’s estate for the care and maintenance of the Ward, including payment of expenses associated with this guardianship proceeding without further Court approval.”23 S.W.3d at 51. The court order went on to require that other fees and expenses be submitted and require contesting parties to file objections within ten days if they objected to the application.

The temporary Guardian then filed for payment of expenses, seeking $13,543.12 in attorney’s fees for expenses arising from the administration and management of the estate. The district court granted the motion. The other parties appealed. The Ward died after the notice and filing of the appeal.

Two important issues were raised on appeal. First, the appellants contended that the district court did not have jurisdiction over administrative matters. They argued that once the contest is resolved, the case is transferred back to county probate court. The court of appeals rejected the argument, holding that once the case was transferred to district court, district court had original probate jurisdiction to hear all matters incident to an estate. Thus, a district court may become the proper court for administration.

Next, and crucial for those who practice in this area, attorney fee applications must be submitted with proper evidence. While attorney fees may be paid from the Ward’s estate, the request for attorney fees must be supported by sworn evidence that the fees were reasonable and necessary, detail the work completed, state the attorney’s hourly rates or the hours expended, and that the rates are reasonable and customary in their area.

Practice Tip:

Do not make blanket applications combining attorney fees and general expenses. Set forth the Guardian’s expenses and the expenses of administration separately. When making application for attorney fees, provide an affidavit signed by the attorney setting forth that attorney’s hourly rate and that the rate is reasonable and customary in the community.

Overman v. Baker, 26 S.W.3d 506 (Tex. App.-Tyler 2000, no pet.). Olive Overman (“Overman”), an applicant for temporary Guardian, was sanctioned and had attorney ad litem fees levied against her by the trial court for filing an application for temporary guardianship when it was later discovered that the proposed Ward had a pre-need declaration of guardianship naming a third party. Overman successfully appealed the ruling.

The appellate court wrote with great insight into the facts that the Ward’s behavior during the year prior to the filing of the guardianship demonstrated good cause for filing the guardianship application. The court cited the change in the Ward’s attitude toward her trusted family member, and the mistrust and anger toward her long-trusted family member in favor of a new friend. The court found that for a temporary guardianship, a doctor’s report may not be necessary; rather, specific behavior of a potential Ward may be enough to initiate and grant a temporary guardianship.

The court of appeals found that the ad litem’s fees must come only from one of two places: the Ward’s estate or the county. The trial court’s assessment of fees against the applicant was reversed.

Practice Tip:

This ruling seems to say that while a party may be precluded from serving as Guardian, if the party makes an application without knowledge of the preclusion, they can be acting in good faith. See Texas Probate Code §§ 665B and 666

Thedford v. White, 37 S.W.3d 494 (Tex. App.-Tyler 2000, no pet.).

Alma Louise Grove’s (“Grove”) niece, Jonelle M. White (“White”), and sister, Lois Dean Thedford (“Thedford”), filed competing applications for guardianship of Grove. At trial, the court appointed White as Guardian of the estate with a $125,000 bond and Thedford as Guardian of the person with a $2,000 bond. White qualified the day of the hearing by filing her oath and bond. Thedford failed to file either her oath or her bond within twenty days of the hearing. On its own motion, the court removed Thedford as Guardian of the person and appointed White.

The court of appeals found that the trial court has full discretion over whether to remove a Guardian for failure to qualify. The court of appeals dismissed Thedford’s argument that she had not had the opportunity to explain to the court why she had not qualified. The appeals court narrowly construed the statutory distinction between a Guardian removed for cause (for abuse and mishandling funds) and one removed for failing to meet statutory qualifying procedure. Those removed for cause are entitled to a hearing. Those removed for failing to qualify have no recourse.

Practice Tip:

Carefully docket statutory deadlines in guardianships. Properly document your file showing that qualifying documents and reminders are sent to the Guardian. See Texas Probate Code § 699-709.

In re Guardianship of Lynch, 35 S.W.3d 162 (Tex. App.-Texarkana 2000, no pet.).

Elizabeth Lynch (“Lynch”) was diagnosed with Alzheimer’s Disease. Her two daughters, Kathie Jewell (“Jewell”) and Karen Lodes (“Lodes,”) disagreed about her care. After trial before a six person jury, Lodes was appointed Guardian and Jewell appealed.

Jewell argued and the court of appeals agreed that the attorney ad litem had not met the statutory requirements of certification. However, the court refused this issue as it was not raised at trial and thus not preserved for appeal. The question of the importance of the certification of the ad litem was not addressed.

Next, the question of the Ward’s preference was raised. Approximately one year prior to the guardianship hearing, Lynch had signed a pre-need declaration of guardianship designating Lodes as Guardian. In a deposition just before trial, Lynch stated that she did not care who was her Guardian. The jury found that Lynch had capacity when she designated Lodes. Failure to give a jury charge as to capacity the year prior to the signing of the pre-need was not required as it was not critical to the jury’s decision.

On appeal, Jewell argued that if a statutory probate court could be required to have a twelve-person jury, so could a county court at law. Lamar County, where the hearing was held, has a county court at law which shares concurrent jurisdiction with district court. County courts at law that are not statutory probate courts empanel six-person juries. The appeals court found she had no right to a twelve-person jury and further that she had not preserved the error.

Practice Tips:

1. Know your probate code and preserve error on procedural issues. If an attorney ad litem is not certified, make the challenge promptly.

2. Determine early if you are in a county probate court or a statutory probate court. If a twelve-person jury is preferred, move county court cases to district court.

Torres ex. rel. Ramon v. Ramon, 5 S.W.3d 780 (Tex. App.-San Antonio 1999, no pet.).

This is a clear case of preserving issues for a post-death probate fight. Esther Gill Torres, as daughter and Guardian for Mary Ramon, appealed the trial court finding that Horatio Ramon (“Horatio”) was Mary C. Ramon’s common law spouse.

The court of appeals found that once the trial court found that Horatio was not qualified to serve as Guardian, it was unnecessary to make a finding that would give him preference, as spouse, to serve as Guardian. The appellate court ruling had no impact on the immediate case. The only significance of the finding was to reserve the issue of common law spouse for a later date.

Practice Tip:

Extraneous findings may be reason for appeal if the finding might latter hurt the clients in a probate proceeding.

In re Guardianship of Murphy, 1 S.W.3d 171 (Tex. App.-Fort Worth 1999, pet. ref’d).

This case involves jurisdictional issues. The transfer of the guardianship case from Wichita County to Harris County was appealed. The majority of the court of appeals found that the order transferring jurisdiction was not final and was not appealable, concluding the court lacked jurisdiction for review. A strong dissent was written by Justice Brigham.

When is a probate court order final and appealable? The finality and appealability of probate and guardianship orders is an unsettled area of law. The majority held that the issue of venue, by statute, is not appealable reasoning that the transfer order did not dispose of any phase, parties or issues in the Ward’s guardianship proceeding; thus, it is interlocutory. The majority goes on to state that none of the cases which discuss the appeal of a venue decision discuss where the appeal should take place.

The dissent argued that the appealablilty of a probate order is somewhat unsettled and because the legislature cannot identify these issues in advance, the appealablilty of a probate order is left to the courts. The dissent acknowledged that a guardianship is an ongoing proceeding and thus a series of various orders. The dissent goes on to argue “[I]f the transfer of the core guardianship proceeding is not appealable now, when would it be appealable? The majority opinion, I believe, disregards the Supreme Court’s policy to avoid constructions that defeat bona fide attempts to appeal.” 1 S.W.3d at 175.

Practice Tips:

1. Jurisdiction appeals are risky. Cases and statutes are contradictory. Further, there is no clear statute governing the venue of the appeal.

2. The definition of interlocutory is a moving target.

Trimble v. Texas Department of Protective and Regulatory Services, 981 S.W.2d 211 (Tex. App.-Houston [14 Dist.]1998, no pet.).

The Texas Department of Protective and Regulatory Services (The Department) was appointed Temporary and then Permanent Guardian of Edna Trimble (“Edna”), ninety-one. James J. Trimble (“James”), her husband, appealed the trial court’s exercise of its discretion as to who should be appointed Guardian; the inadequacy of the findings in the trial court order; the sufficiency of the evidence; and the control of the community property.

The appeals court found that the trial court has broad discretion in the selection of the Guardian. The appeals court agreed that the spouse is entitled to be appointed if he is eligible. Here though, the trial court found that the spouse was ineligible, as he was “incapable of controlling and managing Edna and her estate and he lacked the ability to follow through with recommendations from Protective Service and with court orders.” 981 S.W.2d at 216.

The appeals court ruled that when James was ineligible to serve as Guardian, and the Ward’s two daughters declined to serve. The trial court did not abuse its discretion by appointing the Department as Guardian under these circumstances.

James argued that procedurally, the court should have made specific findings of fact, or state the appropriate standard for the findings in its order. The appeals court stated “the better practice is to draft explicit findings following the language of section 684. Nevertheless, the trial court’s omission of language describing the type of evidence it considered in determining Edna’s incapacity does not render the trial court’s determination of incapacity void or voidable.”Id. at 217.

The decision has an interesting discussion of the timeliness of the doctor’s letter. When The Department filed the application for temporary guardianship, they filed a doctor’s report. The doctor’s report was not entered into evidence at the temporary hearing and it was excluded as hearsay evidence. The Department used the same letter when it filed for permanent guardianship. Because of the time delay between the two applications, the letter was out of date by three weeks at the time of the permanent hearing. Trimble argued that the letter was out of date and that it had been excluded at an earlier hearing.

In a correct outcome poorly reasoned argument, the court made two points when it denied the appeal of the out-of-date doctor’s letter. First, it noted that the statute does not delineate between the applications for temporary and permanent guardianship. The letter was timely for the temporary guardianship. Further, if the trial court errs in applying the law, such error is not reversible unless it caused an improper judgement.

James argued that he was entitled to manage the community property. The court agreed that if a timely request is made by the non-incapacitated spouse for the community property, the Guardian must deliver the property. The appeals court found that James made no demand and thus waived his right.

Practice Tip:

It is doubtful whether other circumstances would support the appeals court’s finding that the out-of-date doctor’s letter was valid. If a guardianship is contested, have the doctor present. If it is not contested, be mindful of the statutorily imposed dates and have a current doctor’s letter (See Texas Probate Code § 687).

In re J7S Inc., 979 S.W.2d 374 (Tex. App.-Houston [14 Dist.) 1998, pet. dism’d by agr.).

Relators challenged the probate court’s authority to refuse to transfer a suit brought by a Guardian, The Guardian sought a declaratory judgment in probate court regarding a sale of real property, sold by the Ward just prior to the guardianship. The property in question was in Atascosa County and the guardianship was in the statutory probate court in Harris County. Relators sought to have the case transferred to district court in Atascosa County.

The court of appeals found the district court has exclusive jurisdiction “except where jurisdiction is conferred by the Constitution or other law on some other court.” 979 S.W.2d at 376. The court found that sections 606 and 607of the Texas probate code confer jurisdiction on the statutory probate courts to hear “[a] matter appertaining to or incident to a guardianship estate.” Further section 607 “provides that ‘in a situation in which the jurisdiction of a statutory probate court in concurrent with that of a district court, a cause of action appertaining to or incident to an estate shall be brought in the statutory probate court rather than the district court.” Id. at 377. The court goes on to cite section 608 of the Texas Probate Code which allows the probate court to transfer district court cases to itself. While the Relators argue that the Civil Practice and Remedies statutes control, the appeals court finds that probate court jurisdiction controls through the specific probate code sections. Barring an abuse of discretion, the probate exercise of jurisdiction controls.

Practice Tip:

The statute governing probate jurisdiction is powerful. Think through the use of the authority before moving the case to or from probate court.

Stubbs v. Ortega, 977 S.W.2d 718 (Tex. App.-Fort Worth 1998, pet. denied).

Burinda Beth Ortega (“Ortega”), the Guardian of Marcella Tabor (“Marcella”), sought and was granted permission to seek divorce for Marcella from Clyde Tabor (“Clyde”), her husband of fifty years. Subsequently, Clyde was placed under guardianship and his Guardian, Durinda Dawn Stubbs (“Stubbs”) appealed the divorce decision.

Marcella’s Guardian argued that the divorce order was interlocutory and could not be appealed. The court of appeals found that the order allowing the Guardian to seek divorce was not interlocutory and that an appeal could be had.

The court then went on to find that there was sufficient evidence to seek divorce and upheld the trial court’s decision granting the Guardian permission to seek divorce. Clyde’s Guardian argued that divorce sought by a Ward was against public policy. The court stuck down this argument, making an analogy with the rights of a mentally ill person who would be able to exercise every right granted by the United States Constitution, laws, or state constitution, or law by and through an ad litem. A mentally ill person may seek divorce through an ad litem or next friend, thus a Guardian may do so on behalf of a Ward.

There is an unusual argument that Clyde and Marcella, through her Guardian, had agreed in the original guardianship proceeding that Marcella could not divorce Clyde. The probate court, at the entry of this agreement, modified the agreement to include that Marcella could divorce Clyde if there was evidence of abuse. Neither Marcella nor Clyde objected to the added provision. The appeals court found that though generally parties’ agreements may not be modified by the court, here Clyde waived his right to object to the probate court’s addition of terms to the agreement when he did not object to the modification.

Practice Tip:

If you make an agreement and the trial court modifies it, object immediately. While generally a court cannot modify an agreement, if the court does modify the agreement and an objection is not raised, the right to object is waived.

In re Stevens, 971 S.W. 2d 757 (Tex. App.-Beaumont 1988, no pet.).

In an odd ruling, the appeals court upheld the trial court’s decision that a Ward could stay in Texas, despite the fact that a conservatorship had been granted in another state and that the conservator sought to enforce the judgment and return by taking the Ward back to his home state.

The conservator sought a writ of habeas corpus in district court by filing the judgment appointing her conservator in another state. The district court did not seem to understand the fundamental issue that one is under guardianship or conservatorship because one is incapacitated. The district court recognized the judgement but sympathized with the Ward and refused to enforce the foreign judgment. The written order only stated “motion denied”.

The court of appeals noted with vigor the probate code sections granting the Guardian the ability to determine the living arrangements of the Ward. Then in a strange twist, the court of appeals found that there was no proof that the conservator had filed her bond and oath to qualify as conservator in her home state. The court went on to state that “under the ‘right result for the wrong reason rule, we are unable to say the trial court abused its discretion in denying the application for writ of habeas corpus.’” 971 S.W.2d at 761. The court of appeals upheld the trial court’s decision that the Ward could ignore the conservator’s decision and remain in Texas.

Practice Tip:

While everyone should want to be in Texas, the result flies in the face of the doctrine of full faith and credit by ignoring another jurisdiction’s orders. Movement across state lines to obtain a new result should not be condoned. The proper method for moving a Ward to a new state is to go back to the court of original jurisdiction and request a modification of the order and permission to move the Ward

In re Estate of Glass, 961 S.W.2d 461 (Tex. App.-Houston [1 Dist.] 1997, writ denied).

Van E. Wittner (“Whittner”), the successor Guardian, appealed the trial court’s order to file a final accounting and close the guardianship. Wittner argued that before he could close the guardianship, he must first collect and liquidate the assets of the Ward to pay expenses and creditors of Eugene Glass’s estate. The court of appeals upheld the ruling stating that once the Ward died, the court lost jurisdiction. The court referred to the Texas Probate Code § 745 which states that “the Guardian shall deliver the property [of the deceased Ward ] to the personal representative of the deceased Ward’s estate or other persons entitled to the property.” 961 S.W.2d at 462 .

Practice Tip:

If the Ward dies and there is business to conduct, such business must take place in the probate proceeding. The guardianship must be promptly closed. Texas Probate Code § 745.

Maeberry v. Gayle, 955 S.W.2d 875 (Tex. App.-Corpus Christi 1997, no pet.). James Lee Gayle (“Gayle”) had been under guardianship during his minority. After turning 18, but before the final accounting was filed or approved, Joe Sidney Maeberry (“Maeberry”), the Guardian, had Gayle sign over his real property to Maeberry. Gayle sued Maeberry and prevailed.

The court struggled with the difference between the termination of the guardianship and the discharge of the Guardian. The court found that the guardianship terminates when the Ward reaches eighteen. Apparently neither party raised the issue that the Guardian had not been discharged. Nevertheless, the court seemed to reach the right conclusion by supporting Gayle’s fraud claim but ignoring any breach of fiduciary duty claim.

Practice Tip:

Do not rely on this case to exonerate a Guardian’s bad acts. While the guardianship terminates at the Ward’s death, restoration of capacity, or majority, the Guardian’s duty to the Ward does not terminate until the Guardian is discharged.

Adcock v. Sherling, 923 S.W.2d 74 (Tex. App.-San Antonio 1996, no writ).

Lola Adcock’s (“Lola”) son, David Adcock (“David”), and granddaughter, Marshelia Sherling (“Marshelia”), both applied to be Guardian. At trial, David was found to have an interest that was adverse to Lola’s under section 681 of the Texas Probate Code. Because he was ineligible, the court appointed Lola’s granddaughter Marshelia as Guardian.

There were contradictory positions in David’s brief. On the one hand, David claimed he and his brother James had been “given” money by Lola (the Ward) to keep safe for her and use on her behalf. On the other hand, David argued that the money was a gift and his to use as he saw fit.

The trial court found that the money was Lola’s and ordered it returned to her estate. While it is not in the record, it appears the trial court believed there had been some wrongdoing by David.

The court of appeals found that the funds were in trust for the Ward. Since the funds were in trust, there could not be an adverse interest. Thus, David was not disqualified. However, the court of appeals upheld the trial court’s findings that the funds did belong to the Ward by leaving them in trust.

The case is interesting, as it is one of the first to interpret the 1993 priority statute and its interplay with best interest of the Ward. The court upheld the statutory priority over the best interest of the Ward. The decision is clever, as it returns the money to the Ward and subjects the funds to court monitoring, while allowing the son who has statutory priority to serve as Guardian.

Practice Tip:

One cannot take contradictory positions and expect to prevail on both. You can’t have the funds and be the Guardian, too.

Hardeman v. Judge, 931 S.W.2d 716 (Tex. App.-Fort Worth 1996, writ denied).

The Guardian sought to sell the family farm which was the Ward’s homestead. Earlier in the guardianship, the court had approved a creative finance method for the Ward’s care by allowing the Guardian to borrow money against the land in $25,000 increments. The Ward outlived everyone’s expectations and the loan was coming up for renewal. The Guardian sought to sell the farm to pay back the loan, and raise money for the Ward’s future care. The Ward’s son and granddaughter opposed the sale. The trial court approved the sale.

The court of appeals upheld the trial court’s decision supporting the sale of the homestead. The court found that the Guardian is “required to take care of and mange the estate of the Ward in the same way a prudent person would handle their own affairs.” 931 718. The court went on to quote the Texas Probate Code which states “a Guardian may borrow money and mortgage ‘any real or personal property of a guardianship estate’ when necessary to pay the Ward’s debts.” Id. at 718. The Court found that the probate code expressly authorizes the sale of a homestead.

There is interesting dicta in this case indicating that the Guardian’s failure to comply with all of the steps of the probate code does not by itself make that act to sell property void

Practice Tip:

Medicaid will allow for the protection of a homestead. When a Ward is in a nursing home or otherwise eligible for public benefits, it would be wise to review if the sale is necessary or if the home can be protected. Failure to protect the homestead when possible may subject the Guardian to future litigation by heirs.

While the court did not make the Guardian strictly comply with the code, deliberate failure to do so is not wise. The sale of property is a four step process set forth in the Texas Probate Code §§ 820 through 837.

Texas v. Ellison, 914 S.W.2d 679 (Tex. App.-Austin 1996, no writ).

The Ward, a severely mentally retarded person, owned 451 acres of land. The Texas Department of Mental Health and Mental Retardation (TDMHMR) sought to remove the Guardian and force the sale of the land to pay for past care of the Ward. The Guardian sought to protect 200 acres as homestead and sell the remaining property. The Guardian had been unable to sell the land.

There are several rules that are noteworthy in this case. First, the Guardian does have the right to set aside a homestead for a Ward. Second, the Guardian can declare the Ward’s intent to return home even if it is not realistic. Finally, the court is supportive of granting attorney fees to the Guardian for defending himself against possible removal.

Not allowing such fees would have a “chilling effect” on those willing to serve as Guardian.

Practice Tip:

When a guardianship is established, it is important to review the assets and determine if a homestead should be designated. All Wards may have the intent to return home. If a homestead is to be designated, a formal declaration should be filed with the court in the Guardian’s inventory. Additionally, if the Ward is likely to need public benefits, a means of supporting the homestead without funds from the Ward is crucial. If such support cannot be found, it may be impossible to protect the homestead.

Simmons v. Harris County, 917 S.W.2d 376 (Tex. App.-Houston [14 Dist.] 1996, writ denied).

Edwin I. McKellar, Jr. (“McKellar”) was under guardianship and his estate was insolvent. His Guardian, Sunshine E. Simmons (“Simmons”) attempted to recover his attorney fees from the county. Simmons argued that attorney fees are costs and as such should be recoverable under section 669 of the Texas Probate Code.

The court held that in order for attorney fees to be costs, the fees must be statutorily mandated or have a contractual basis. The court held that attorney fees can not be judicially created. The Guardian’s attorney was not statutorily authorized to receive fees nor was there a contractual relationship with the Ward.

Practice Tip:

Take a retainer to cover the fees unless there is an estate from which to collect them.

Henderson v. Viesca, 922 S.W.2d 553 (Tex. App.-San Antonio 1996, writ denied).

Viesca, an attorney, served as the Guardian of the person and estate of Mary Lou Heep Henderson (“Mrs. Henderson”). In her original appointing order, Viesca agreed to serve as Guardian only if she was able to serve as Guardian and attorney for the guardianship estate. After qualifying, the Guardian sought permission of the court to hire counsel to sue the trustee of a trust of which the Ward was a beneficiary. After the conclusion of the litigation, the Guardian resigned and filed her final accounting. She requested and was granted both attorney fees and guardianship commissions.

The court of appeals upheld the trial court’s ruling, finding that there are public policy reasons and legal reasons for such fees. First, dual compensation is allowed in estates. Second, the duplication of services is avoided by having someone knowledgeable serve in both roles.

In evaluating what commissions should be paid, the court found that the income from the trust should be included when calculating the commission. The court supports this by showing the Guardian regularly and timely filed accountings with the trial court and that the accountings included the distributions from the trust.

The court of appeals went on to grant attorney fees for the actions required to defend the Guardian from the challenges regarding these fees. The court upheld the trial court’s grant of extraordinary fees, based on the facts that the Guardian/attorney testified to her hours, her rate and to the fact that she spent one-third of her professional time on this matter. There was further testimony from lead counsel to the litigation of the legal support offered by the attorney/Guardian in this matter.

The court of appeals upheld the Guardian’s commission, her legal fees and her extraordinary commission. The court went on to reverse the trial court’s finding that the Guardian was not entitled to fees for defending her actions nor her appeal and granted attorney fees for both.

Practice Tip:

The Guardian clearly had good records of both her guardianship accounts and her time as Guardian. The practitioner should note that separate records of each should be presented when requesting dual compensation.

Coleson v. Bethan, 931 S.W.2d 706 (Tex. App-Fort Worth 1996, no writ).

The Bernard J. and Patricia Bethan were appointed the Guardians for their minor children. James W. Coleson (“Coleson”) was appointed as the attorney ad litem to represent the minors. After the court granted the guardianship it left Coleson on as the attorney ad litem.

Coleson and counsel for the Guardians had an acrimonious relationship. While the Guardians through their counsel may not have been timely in all filings, Coleson clearly aggravated the situation.

After three years, the Guardians filed to have Coleson’s services terminated. The court denied this action. The Guardians were removed on Coleson’s motion and then Bernard J. Bethan was reinstated.

Next, the attorney ad litem was removed when counsel for the Guardians requested an in-chambers meeting with the judge and the attorney ad litem.

The ad litem appealed arguing that there was no evidence of misconduct or neglect of his duties, that he had no notice of the hearing on his removal, and that the attorney for the Guardian engaged in ex parte communications. The Guardian’s counsel argued there can be no procedural violation where there is no process for discharging an attorney ad litem. The trial court found that there was need for an attorney ad litem but that the relationship between counsel for the Guardian and the attorney ad litem hindered the attorney ad litem’s ability to function.

The decision has a lengthy discussion on when the role of the attorney ad litem ends. The court cited the statutory provisions for two types of ad litems: a Guardian ad litem and an attorney ad litem. The court found that there are no provisions for the end of the appointment, but found that the appointment should end when the suit ends at the appointment of the Guardian.

The court went on to state that the Texas Probate Code makes “no mention of the duties or obligations of an attorney ad litem once a Guardian has been appointed and the ‘proposed Ward’ has become a ‘Ward.’” 931 S.W.2d at 711. The court found that once the Guardian was appointed, the duties of the attorney ad litem ceased, and the attorney ad litem should have been discharged. The better practice is to seek to immediately be discharged.

The relationship between an attorney ad litem and a client is a special relationship where the attorney must be specifically authorized to act. The court stated, “Unless the lawyer is legally authorized to act for a person under disability, an attorney-client relationship does not exist for purpose of this rule. “ Id. at 711.

The court found that the there are two procedures that could be followed for removal of the attorney ad litem: a motion to show authority, or a request for a temporary restraining order. The court of appeals found that the probate court had the authority to temporarily remove the attorney ad litem, but should have done so with notice and a subsequent hearing.

While the attorney ad litem has the same duties as are required in any attorney/client relationship, the probate court cannot use unbridled discretion to remove such an attorney. The court further states that “Since the probate court is charged with the duty to protect the interest of its Ward in the context of such representation, its hand cannot be tied if it or some opposing party, perceives a true need for the removal of an attorney ad litem.” Id. at 713 . The court goes on to analogize to criminal appointments and finds that “the record must reveal some principle reason to justify a trail judge’s sua sponte replacement of trial counsel.”

The court of appeals was careful to allow the trial court the discretion to remove an attorney ad litem, but ruled that a hearing with proper notice to the attorney ad litem is required.

Practice Tip:

The attorney ad litem serves at the discretion of the trial court, and should the court deem that further monitoring is appropriate, or that other actions are necessary, the better practice would be for the trial court to appoint a Guardian ad litem after the determination of the need for a guardianship has been made.

Youngs v. Choice, 868 S.W.2d 850 (Tex. App.-Houston [14 Dist.] 1994, writ denied).

Barbara S.Youngs (“Youngs”), the daughter of the Ward, May T.Youngs (“May”), acting pro se, appealed a summary judgment appointing Maggie Choice (“Choice”) as Guardian of May. At stake was Youngs’ alleged homestead which was held jointly with the Ward. Youngs had failed to answer discovery. Her failure caused the request for admissions to be deemed admitted. Youngs raised several issues. The court of appeals held Youngs to the same standard as an attorney. Youngs’ failure to hire counsel caused her claims to fail on procedural grounds. While several substantive issues were raised, such as the Guardian’s right to partition a homestead, and the burden for those seeking to remove the Guardian, the court was unable to discuss them as they were not properly raised. There was an inadequate record, or inadequate law presented to the court, because of Youngs’ pro se status. Youngs lost her appeal.

Practice Tip:

When in court, it is always wise to hire counsel.

Retana v. Tanner, 869 S.W.2d 669 (Tex. App.-San Antonio 1994, no writ).

After a default judgment, the losing party sought to set aside the judgment. The court refused because if there is an incapacitated person, the court has two options: have a Guardian appointed, or create a trust under section 142 of the Texas Property Code. The losing party does not have the right to contest the judgment because it is silent as to who manages the funds. Management of the funds is an ancillary issue. The losing party must fulfill its duty by turning funds over to the registry of the court until there is further action creating a trust under Section 142, or a guardianship created by the next of friend.

Practice Tip:

Watch your docket. If you miss a hearing, move immediately to set aside the default judgment.


In hindsight many of these cases have issues which appear easy to solve. The reality is that probate court is often informal and administrative. As such, the record is not clear, trials tend to be informal, and findings sketchy. All of these symptoms make probate court decisions easy targets for appeals.

Of the twenty-five cases reviewed here, six cover jurisdictional issues; six address attorney fee issues; three rule on the issue of jury trial; and, three on priority, best interest and preference of the Ward when choosing a