2011 Legislative Update, Part 2

Among the other potential legislative changes that might have a negative effect on guardianships in Texas is Senate Bill 1027, which was also introduced by state Senator Chris Harris representing Denton County. Under this proposed bill, Harris would add a new section to the Probate Code that would prohibit an attorney who serves as guardian of someone to also provide legal services on behalf of the guardianship. This proposal is terrible legislation as it may be unconstitutional, and it is certainly counter to extremely long-standing law in Texas.

On the question of constitutionality, this proposed legislation would prohibit an attorney serving as guardian to also provide legal services for the Ward. This sounds like an unreasonable restriction on an attorney’s right to practice law, which raises a constitutional issue. Likewise, this proposal seems to discriminate only against lawyers and not other professionals like doctors, financial planners, and accountants who might also serve as guardians and also provide professional services to them.

More significant than the constitutional question is the fact that this proposed legislation violates long-standing Texas law that has been recognized by every Court in the state. The Courts have uniformly agreed that allowing an attorney to serve the dual role of guardian and attorney simply saves time and money for the Ward’s estate and promotes the Ward’s best interest because of the fees saved by the attorney/guardian not having to hire an additional attorney to complete the tasks that the attorney/guardian could complete more easily himself. The rationale recognizes the inherent inefficiency of having to educate an outside attorney at every turn of the guardianship when the attorney/guardian would not have to educate himself.

Ford & Mathiason practices extensively in the guardianship arena, and we certainly recognize that the appointment of an attorney as guardian can lead to some abuses of the position. However, the relatively small numbers of cases in which we find abuses do not justify the kind of bad law that would emanate from Senate Bill 1027. Please contact your Texas Legislators to encourage them to vote against this Bill.