As you may know, the Texas Legislature convenes in January of every odd year, and the Legislative session generally extends for 140 days (approximately 4.5 months). During the Legislative session, hundreds of bills may be introduced covering a wide array of topics. The 2011 session convened in January and will extend until the end of May. Saturday, March 12, 2011, was the last day for legislators to file bills that they wanted to have considered in this Legislative session. The Legislature provides online access through the Texas Legislature Online to view and track the proposed legislation up for debate in the Legislative session.
Among the topics covered in many of these bills are various issues related to probate and guardianships. From my review of these bills, it appears that there are sweeping changes that have been proposed in the probate and guardianship arenas. Many of these changes mark distinct changes in the status of the current law, and some of the proposals are simply bad law.
Probably the most disconcerting of these proposed changes to law is Senate Bill 286, which has been introduced by state Senator Chris Harris, who represents Denton County in the Legislature. This bill would allow Judges in guardianship cases to charge the attorney’s fees in a guardianship case to one party or the other when there has been a guardianship contest. His legislation would also open the door for Courts to assess the fees for court-appointed attorneys against the party bringing the guardianship action.
This proposed legislation could have a chilling effect on guardianships and jeopardize the safety of many elderly adults who need protection from those taking advantage of them financially or neglecting their personal welfare and safety. Although the Bill is likely intended to curtail abuses of the guardianship process, its intent will be quickly distorted by Courts that do not fully appreciate the complexities of guardianships.
The problem created is this: Unlike litigants in any other type of lawsuit, litigants who file guardianship actions do not stand to benefit personally from the guardianship case. Rather, they are looking to institute a mechanism for protecting an elderly person who is incapable of protecting themselves. If a litigant faces the risk of having to pay someone else’s attorney’s fees when they are simply trying to help an elderly family member or friend will likely be deterred from getting involved in trying to help that person. This will create a significant deterrent for those who might be inclined to help protect an elderly person, and it will lead to significant problems for potential elderly victims of abuse.
You should contact your Texas Legislator to encourage them to vote against Senate Bill 286.