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.