Lately it seems as if stories about Britney Spears and her attempts to end her California conservatorship have appeared in every tabloid in America. Endlessly.
While the Britney stories make for great voyeuristic reading, they also serve a bigger purpose: they shine a bright spotlight on the right and wrong ways to end a conservatorship.
In Texas, a conservatorship is called a guardianship. A Texas guardianship can be ended by several methods.
The first method, although tried and true, is not popular with many wards. It is the death of the ward.
The second method is for either the ward or a person interested in the ward to file an application with the guardianship court. The application seeks to have the ward’s capacity legally reinstated or to change the guardianship terms. Once an application has been filed, it winds its way through a procedural route to the end game, which is an evidentiary hearing before the court.
The third method starts out more casually. At any time, a ward under a guardianship can write an informal letter to the court requesting that the guardianship be closed. Because this is an action usually taken by the ward without legal help, the law provides safeguards and a timetable.
The ward’s letter must be delivered to the court, and anyone who interferes with the delivery can be held in contempt of court.
Once the court receives the letter, certain actions are set in motion. First, the court must appoint a court investigator or guardian ad litem to investigate the ward’s circumstances. Court investigators are employees associated with the court. Guardian Ad Litems are usually independent attorneys who have specialized training in guardianships.
The purpose of their investigation is to determine if the ward is still an incapacitated person or if the guardianship itself should be modified. The investigation usually involves a home visit to interview the ward, discussions with the ward’s guardian and anyone else with knowledge about the ward, and review of medical and financial records.
Second, the court must send a response to the ward, by certified mail, within 30 days after it receives the letter. The court must acknowledge that it received the letter, inform the ward of the date when the court appointed the investigator or guardian ad litem, and give the ward that person’s contact information.
Third, after the investigation, the court investigator or guardian ad litem must file a written report with the court with findings and conclusions. A copy of the report must also be provided to the ward. The report kicks off the next action.
Finally, If the court investigator or guardian ad litem recommends that the guardianship be terminated or modified, then they file an application with the court to do so. If their recommendation is that the guardianship remains unchanged, then the court takes no further action.
At any point, the ward can hire a private attorney. If the court finds that the attorney had a “good faith belief” that the ward had enough capacity to hire him, then the attorney can be paid from the ward’s estate. Not surprisingly, it can be challenging for a ward to find an attorney who will work on the slim promise of future possible payment.
Had Brittany Spears been under a Texas guardianship, she could, at any time, have filed her own application to close the guardianship and restore her to legal capacity. In the alternative, she could have just sent the court a letter requesting an investigation.
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Virginia Hammerle is president of Hammerle Finley Law Firm. She is an Accredited Estate Planner, has been Board Certified in Civil Trial Law for 25 years, and recognized as a Super Lawyer for the past 10 years. She blogs regularly on senior issues and the law and has a monthly newsletter. Contact at email@example.com.