This is part 3 in a 3-part series.
Guardianship law has been a huge target in every recent Texas legislative session, and the 2023 regular session was no different. Most of the changes were fine-tuning to make existing laws less cumbersome or expensive.
Formal Service on a Proposed Ward
One change involves formal service on a proposed ward. The original guardianship application must be personally served on the ward. Under the former law, every subsequent amended or supplemented application had to also be personally served on the ward. That was pricey and often scary for the ward. The new law wipes out that requirement. Now, amended, or supplemental, applications only have to be served on the ward’s court-appointed attorney.
Guardianship of the Estate
In Texas, there are two types of guardianship: guardian of the person, and guardian of the estate. A few of the changes were aimed directly at guardianship of the estate. Under the old law, the guardian of the person could handle only small amounts of the ward’s funds, which meant that if the ward had more than a scintilla of money then the court had to appoint a guardian of the estate. The new law increases the amount that the guardian of the person can manage to $20,000, thus eliminating the need to appoint a guardian of the estate.
Under current law, real property worth $100,000 or less that belongs to a ward or a minor can be sold without creating a guardianship of the estate. The new law increases that threshold to $250,000.
Under current law, when a guardian of the estate is appointed then the ward’s written power of attorney is automatically voided. The new law allows a court to merely suspend the power of attorney during guardianship.
Is Texas A Community Property State?
Yes, Texas is a community property state. When a guardian of the estate is ordered for a ward who is married, then the spouse is supposed to turn over ½ of the community property to the guardian, including bank accounts, and investment accounts. This can be difficult if the spouse is unsophisticated, missing, or uncooperative. The new law provides that the court can order third parties, such as banks and investment companies, to turn over the ward’s share of property to the guardian of the estate.
Privately Retained Attorneys vs Court Appointed Attorneys
Sometimes wards and proposed wards want to hire their own attorney, instead of having a court appointed attorney. Under the new law, if a ward’s privately retained attorney shows up in a guardianship case, then any other party in the case can file a motion to have the court determine if the ward had enough capacity to hire the attorney. If the court finds the ward does not, then the court can appoint an attorney ad litem to represent the ward.
Filing an Annual Guardianship Report
A guardian of the person has a lot of duties. These include filing an annual report with the court. The new law increases the information that must be included in the report. Now, the guardian must include a description of the supports and services the ward receives, including the actions the guardian is taking to encourage development of the ward’s maximum self-reliance and independence. The guardian must also opine whether the ward has sufficient capacity with supports and services to have his or her capacity formally restored, or the guardianship modified.
In 2023, the legislature whittled away at guardianships of the estate, emphasized alternatives to guardianship and encouraged restoration of a ward’s rights. That is a move in the right direction. Let me say it again: guardianship is cumbersome and expensive and should be avoided when possible.
Hammerle Finley Offers Guardianship Assistance
Do you have questions about a loved one’s guardianship options? Schedule a consultation with one of our experienced attorneys for more information.
Attorney Virginia Hammerle has practiced litigation and estate planning for 40 years. She is founder and managing attorney for Hammerle Finley Law Firm.
Read part 1 of the series: New 2023 Laws for Texas
Read part 2 of the series: Trust Tweaks: Small Changes with Big Outcomes
