Guardianships in a Small Town

From Matlock to My Cousin Vinny, jokes about the administration of justice in small towns has been the stuff of movies and television for decades, and although Hollywood has always portrayed dramatic differences in justice in small towns versus the big city, I always wondered if differences actually existed.  In the last couple of years, I have found the answer to often be “yes!”

Guardianship laws in Texas are relatively new, and they are much more complex than most attorneys realize.  The primary objective behind guardianship laws is to provide protection and decision-making for someone who no longer has the ability to make decisions for themselves.

In larger counties like Harris and Dallas, dedicated courts (the Probate Courts) hear all probate and guardianship cases, and these are the only types of cases these courts handle.  In smaller counties, however, the county does not have a dedicated Probate Court but instead has county courts that hear civil matters, criminal matters, and probate matters all in the same court.  As a result, the judges and attorneys in many of these courts have too many responsibilities to be able to master the guardianship laws.  As I have seen in several cases recently, the inability to master this topic jeopardizes the freedoms many of us hold dear.

In one recent case, neither the Judge nor the attorneys knew much about guardianship laws.  In that case, the Judge unknowingly granted a guardianship without proper authority.  Before the Court of Appeals ultimately reversed his decisions and started the entire process over, more than $55,000 was paid out of the incapacitated person’s bank accounts to the opposing lawyers without any proper court authority.

In another case, a mother sought to obtain guardianship of her incapacitated adult daughter so she could provide care for her.  She hired lawyers who took 3 years to bring this simple, routine case before the Court.  After literally years of frustration, the mother finally fired the lawyers, and within less than a month, she accomplished on her own what the lawyers were never able to accomplish.  In a case that could easily have been completed in less than 2 months and for relatively low attorneys’ fees, those lawyers spun their wheels needlessly for years and charged nearly $10,000.  The Court-appointed Attorney in the case charged $2,500 in spite of admitting to the Court that he acted inappropriately.

In yet another case, the small county Judge and lawyers forced a relatively young gentleman to be evaluated by a doctor who determined the man to be “totally incapacitated” and said that he lacked the ability to drive, feed himself, care for himself, manage his own money, etc.  At the end of the case, the Court found that the gentleman totally lacked the ability to perform these basic functions, but the Court did nothing to actually address his needs.  The man owns valuable real estate with considerable oil and gas minerals on the property.  So, the Court took all of his property away from him and gave it to a local bank to manage (and make money off of!), but the Court did nothing about addressing the man’s personal needs.  To date, the man still drives his own car, feeds himself daily, maintains his own him, etc. – all of the things the doctor said he lacked the ability to do and the Court ordered that he be restricted from doing.  The only thing that has changed about his life is that he no longer has access to his own money.

In the larger counties with Probate Courts, the judges know how a case is properly brought before the Court, and those judges pay close attention to protecting the rights of the purportedly incapacitated adult.  The Probate judges closely monitor the attorneys fees paid in guardianship cases so that the fees are “reasonable” and not paid for work that is not actually completed.  Likewise, the Probate judges will take great efforts to ensure that someone needing assistance gets it – not just that their money gets taken away from them without any effort to provide food or clothing for them.  All of the issues that I identified in the cases described above would likely have been eliminated had the cases been brought in a Probate Court rather than a small-town county court.

These cases and others like them illustrate the unfortunate reality that the administration of justice, or at least the administration of guardianship laws, often differs from the big cities to small counties.  Although many guardianship cases in small counties can involve huge estates and very complex issues, the attorneys and judges working on those cases are many times not experienced enough to adequately handle the issues before them.

In each of the cases described above, Ford & Mathiason was hired to come in and clean up the mess created by attorneys who took these cases not knowing enough about guardianship laws to properly handle these cases.  In one of these cases, our client was not aware originally that she could hire a lawyer from outside the county to handle the guardianship case.  She was happy to learn that she could retain Ford & Mathiason to help her in the small East Texas town where her case was pending.

If you find yourself engaged in a difficult guardianship case in a smaller county that just does not seem as though it’s been handled properly, you should contact a qualified guardianship attorney who routinely practices in this area.