Texas Guardianship: Different County, Different Court

As we reported in our Latest News section recently, F+M partner Don D. Ford III recently testified before the Texas Legislature’s House Jurisprudence committee on issues related to guardianships.  One of the issues that Ford discussed was the fact that guardianship are handled in 3 different types of courts in the state of Texas, and the choice of which type of Court is dependent upon which County the incapacitated person lives in.

In the 10 largest counties in Texas (Harris, Dallas, Travis, etc…), all guardianship cases are conducted in Statutory Probate Courts.  By law, these courts can only handle probate and guardianship cases.  Many times, the Judges of these Courts are board certified in estate planning and probate, so they are experts in probate and guardianships before they ever get elected to be a judge.  Parties in these courts generally have the benefit of judges who know the subject-matter of their cases well.

In the mid-sized counties, guardianship cases are handled in County Courts at Law.  These courts have judges who are lawyers, but the judges hear not only probate and guardianship cases, but they also hear criminal, civil, and family cases.  As a result, these judges are not usually experts in the probate and guardianship arenas.  In many cases, those judges really have little interest in handling probate and guardianship cases, so they do not dedicate much time or effort to these cases.  This, obviously, results in the parties in those courts receiving less than adequate attention and expertise.

In the majority of smaller counties, guardianship cases are handled in the County Court, where the judge very often is not even a lawyer.  In those counties, you can have a non-lawyer with no legal training making the decision as to whether to strip away someone’s basic constitutional rights to handle their own property and make their own healthcare decisions.  This should scare anyone in these counties!

In his testimony to the Legislature, Ford pointed out that legislation exists to allow every county in the state to have a statutory probate court.  If a single county is too small to afford to have a Court for that county alone, multiple counties can share a statutory probate court.  Because guardianships are handled by such different courts in different counties, an incapacitated person can receive much different treatment in one county versus another.  We should be working to eliminate this discrepancy and encourage smaller counties to create statutory probate courts so that all Texas citizens receive similar treatment if they become incapacitated.

Dallas Commissioners Continue to Fail Dallas Probate Courts

A couple of years ago, we wrote about the Dallas County Commissioners’ Court’s failure to adequately fund the Dallas Probate Courts.  We pointed out that some of these courts do not even have the ability to send a fax, make a long-distance phone call, or have a copier in the court offices when the Probate Courts in other counties have offices that are fully-equipped to function in the modern-era with copiers, fax machines, scanners, long-distance, etc.

Since that last blog post, not much has changed in Dallas County.  The Commissioners’ Court continues to under-fund the Probate Courts.  The most recent example of this problem came to light recently as we were working on a simple, uncontested guardianship where an adult son was trying to become his father’s guardian because of the father’s increasing alzheimer’s.

Under the Texas Government Code, every statutory Probate Court in the state is required, by law, to have a court investigator.  The Court Investigator’s role is to go out and investigate each potential guardianship case and to make a recommendation to the Court as to whether it appears that there needs to be a guardianship created.  The Court Investigator’s investigation and report is the very first step in a guardianship case, and until they have performed their duties, the case cannot proceed.  Delaying the investigation often means delaying the ability to appoint someone to look out after the interests of an incapacitated elderly adult who cannot care for themselves any longer.  The overwhelming majority of these cases deal with guardians for the elderly.

Over the last few months, 2 of the Dallas Court Investigators have quit, and because the Dallas Commissions have instituted a hiring freeze, the Probate Courts have not been able to replace these two positions.  As a result, the 3 Probate Courts have been sharing one Investigator for several months now, resulting in incredible delays in creating guardianships.  While the normal investigation should take no more than 10 days, we have been waiting 4 months for the Investigator to do the investigation in our case.

Because the Legislature placed such a high importance on the role of the Court Investigator, the Government Code requires that the County hire these individuals, even if there is a hiring freeze in place.  The County must fill these positions, but the Dallas Commissioners refuse to authorize the funds to hire them for Dallas County – in violation of very clear best interests of the citizens of Dallas County.

Every citizen of Dallas County should be completely outraged at the Commissioners’ inaction.  Their failure to fill these critical court investigator positions has put the elderly incapacitated individuals in Dallas at risk of abuse and/or neglect.

To Serve or Not to Serve: a Trustee’s Duty of Good Faith

Many people choose to set up trusts for their children either before they die, or in their will.  For the individual creating a trust, called the settlor, who to choose as trustee can present some tough questions.  Initially, the settlor may choose to serve as trustee, but what happens once they die?  Does he choose a close family member, a spouse, or perhaps a lawyer or financial advisor.  For the individual appointed as trustee should, there are more questions to consider before accepting.  What are the duties of a trustee and is there any liability in the event those duties are not carried out.

All trustees have the absolute duty to act in good faith when carrying out his or her duties.  Unfortunately, this does not mean what most non-legal persons believe it means.  Everyone knows ignorance of the law is no excuse.  For purposes of being a trustee, ignorance of a trustee’s duties are no excuse.  It is not enough that a trustee himself subjectively thinks what he is doing is right.  The duty of good faith also requires that the trustee’s actions be objectively made in good faith.  To do this, courts will look at what the “prudent person” would believe to be proper.  If the prudent person would know that trust funds should have been invested, trust property should have been sold, or that property taxes must be paid and rent must be collected on real property, and it was not, the trustee can face personal liability.

While many people prefer to have a family member serve as trustee, it is important that the person creating the trust and the potential trustee know what is to be expected.  By ensuring the selected trustee knows exactly what is to be expected, and the duties he must fulfill, problems can be avoided down the road.