GUARDIANSHIP CASE LAW UPDATE 2007

GLEN A. RIVES
Fox & Associates, L.L.P.
1600 Highway 6 South, Suite 230
Sugar Land, Texas 77478

State Bar of Texas

ADVANCED GUARDIANSHIP LAW
March 9, 2007
Houston

CHAPTER 10
 GLEN A. RIVES
Fox & Associates, L.L.P.
1600 Highway 6 South, Suite 230
Sugar Land, Texas 78478
713-871-2076
Fax: 713-871-2498

BIOGRAPHICAL INFORMATION

EDUCATION

B.S. The University of Texas, Austin, Texas

M.S. Miami University, Oxford, Ohio
J.D. South Texas College of Law, Houston, Texas

PROFESSIONAL EXPERIENCE

Fox & Associates, L.L.P., Houston and Sugar Land, Texas, 2006 - Present
Barnes & Karisch, P.C., Austin, Texas, 2002 - 2006
RBC Dain Rauscher, Austin, Texas, 1998 - 2001

PROFESSIONAL ACTIVITIES

Member: State Bar of Texas, Real Estate, Probate, and Trust Section
Member: Harris County Bar Association, Probate, Trust, and Estate Section;
Entertainment and Sports Law Section
Member: Fort Bend County Bar Association
Member: Houston Estate and Financial Forum (HEFF)
Member: Attorneys in Tax and Probate (ATP)

Former Lead Attorney: CRISP/ARC of Texas Guardianship Program, Austin, Texas

 TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. APPOINTMENT AND QUALIFICATION OF GUARDIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. In the Guardianship of K.B. and In the Guardianship of J.N.B., Nos. 04-05-00852-CV &
04-05-00852-CV, 2006 S.W.3d (Tex.App.-San Antonio 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. In re: R.G.W., A Minor, No. 11-04-00237-CV, 2006 S.W.3d (Tex.App.-Eastland 2006, n.p.h.) . . . . . . . . 1
C. In the Guardianship of Betty JoAnn Erickson, An Incapacitated Person, No. 06-05-00129-CV,
208 S.W.3d 737 (Tex.App.-Texarkana 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. ATTORNEY AD LITEM FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Texas Municipal League v. Burns, No. 2-05-368-CV, 2006 S.W.3d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. AUTHORITY OF GUARDIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Johnson v. McClintock, No. 13-05-00359-CV, 202 S.W.3d 821 (Tex.App.-Corpus Christi 206, n.p.h.) . . 3
B. Di Portanova v. Monroe, No. 01-04-00992-CV, 2006 S.W.3d (Tex.App.-Houston 2006) . . . . . . . . . . . . . 3
C. In re: Guardianship of John R. “Jack” Archer, 203 S.W.3d 16 (Tex.App.-San Antonio 2006, n.p.h.) . . . . 3

V. EXAMINATIONS AND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Robert W. Karlen v. Joye P. Karlen, No. 014-06-00250-CV, 209 S.W.3d 841 (Tex.App.-
Texarkana 2007, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Morris Mitchell Robinson v. Glenda E. Willingham, No. 03-05-00221-CV, 2006 S.W.3d (Tex.App.-
Austin 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

VI. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. In re: Guardianship of Kathryn Houseworth Gibbs, An Incapacitated Person, No. 02-05-00143-CV,
S.W.3d (Tex.App.-Fort Worth 2006, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. In re: Rodney Oestreich, Guardian, No. 04-06-00455-CV, S.W.3d (Tex.App.-San Antonio 2006, n.p.h.) 5
C. In re: Guardianship of L. A. Moon, An Incapacitated Person, No. 06-05-00128-CV, S.W.3d
(Tex.App.-Texarkana 2007, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
D. In re: Ella V. Mask, No. 04-06-00097-CV, 198 S.W.3d 231 (Tex.App.-San Antonio 2006, n.p.h.) . . . . . . 6

VII. LEGISLATIVE HEADS UP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Guardianship Case Law Update 2007
GUARDIANSHIP CASE LAW UPDATE 2007
I. INTRODUCTION
Guardianship law traditionally does not have the
volume of cases that other areas of law are blessed (or
cursed) to have. From February 2006 to February 2007
there were only a small number of cases in the
guardianship area and many were only memorandum
opinions.
In fact, the rulings in these cases seem to be vanilla
and very predictable. However, there are valuable things
to learn even from the predictable cases, not the least of
which is the reinforcement of our knowledge of the
Texas Probate Code and sections relating to
guardianships.
For purposes of this paper, I am using a similar
format to what Randy Drewett used previously for his
case law update. The Texas Probate Code is referred to
as “TPC” throughout the paper and the cases are listed by
subject matter under the Texas Probate Code headings.
Some cases obviously can be classified in several ways
so, for purposes of this paper, I included these papers in
the area which they may be most applicable.
The citations for these cases are found in the table of
contents and not in the body of the paper for no reason
other than ease of reading.
After each case discussion in the paper I have
included a “HEADS UP!” paragraph that hopefully will
alert the reader to an issue and avoid potential problems
in their practice.
I would like to acknowledge the help I received in
preparing this paper from two individuals. First, Kenneth
Fair with Jones McClure Publishing for making sure I
did not miss anything vital to our discussion. Second,
my friend and former colleague, Glenn Karisch, at
Barnes & Karisch, P.C. for his input on the ongoing
legislative wrangling with regard to guardianship law
happening in the bowels of our state capitol.
II. APPOINTMENT AND QUALIFICATION OF
GUARDIAN
A. IN THE GUARDIANSHIP OF K.B. AND J.N.B.
Mom and dad had three children and divorced in
1995. In 1998, mom moved with the children to San
Antonio and dad at that point ceased all contact with his
children.
In June of 2004, mom died in a car accident.
Mom’s current husband, “stepdad” was appointed
temporary guardian of the children. Stepdad then filed
an application to be the children’s permanent guardian.
Dad filed an answer to the application and then filed his
own application for permanent guardian.
After an extension of the temporary guardianship,
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mom’s sister, “aunt” filed an application to become
permanent guardian of the children.
Stepdad withdrew his application in favor of aunt’s
appointment. K.B. who was fifteen years old at the time,
filed a selection of guardian pursuant to section 680 of
the TPC stating her wish for her aunt to be her guardian
and her opposition to her dad’s appointment.
The trial court appointed aunt as permanent
guardian and found dad disqualified to serve via section
681(7) of the TPC.
Dad appealed that the court improperly applied TPC
section 681 and that section 676 governs selection of a
guardian. He argued that he should be appointed as
surviving parent unless he is incapacitated.
The court of appeals disagreed stating that a
surviving parent may still be disqualified as guardian
under section 681 of the TPC. The presumption that
under TPC section 676 that the best interests of a child
are served by allowing custody by a natural parent, may
be rebutted by evidence that the surviving parent is
disqualified.
Because K.B.’s selection of a guardian under section
680 is an exception to the general rules of section 676,
the court found that the trial court did not abuse its
discretion in appointing aunt as guardian.
The court also found that the trial court did not
abuse its discretion in determining that dad was
disqualified under section 681(7) to be appointed
guardian for J.N.B.
HEADS UP! Logic still rules in guardianship law. All
the sections regarding appointment and qualification of
guardian must be read together. The Court has discretion
to appoint and remove guardians and disqualify
applicants.
B. IN RE R.G.W., A MINOR
Mom and dad had one child in 1989. The parents
divorced in 1996. Mom died in 2003, when R.G.W. was
fourteen years old.
Dad and grandmom each filed guardianship of the
person and estate of R.G.W. Dad testified that he and
mom continued to live together after the divorce and that
the two only divorced because grandmom threatened to
cut mom off from her money and to throw her out of her
will. He also testified that he was involved in R.G.W.’s
everyday care and that grandmom had been verbally
abusive to R.G.W.
Grandmom countered that she was not verbally
abusive, that she paid for multiple houses during the
marriage, and that dad never paid child support. She
introduced records to show that dad owed $26,250 in
child support before the hearing.
Dad moved for a directed verdict on the grounds
Guardianship Case Law Update 2007
that grandmom had not shown evidence of a
disqualification to prevent his appointment as guardian as
R.G.W.’s natural father, which was granted.
Grandmom appealed on three issues: that failure of
dad to pay child support disqualified him under TPC
section 681(4),(6),(7), because he is in effect a party to a
lawsuit against R.G.W., because he is asserting a claim
against R.G.W., and because he is disqualified under
section 681(7) for inability to properly and prudently
manage R.G.W. or her estate.
The court cited section 676 and ruled that a parent
as natural guardian is generally entitled to be appointed
guardian of a minor unless the parent is shown to be
disqualified.
The court stated that there was nothing in the record
to support grandmom’s claims and therefore, the trial
court did not abuse it’s discretion in appointing dad as
guardian.
HEADS UP! Just like in the previous case, the court
starts at TPC section 676 and then moves to section 680
and 681. A parent owing child support payments in and
of itself does not disqualify an applicant for guardian.
C. IN THE GUARDIANSHIP OF ERICKSON
Erickson is an elderly woman with diminishing
mental capacity. Her two sons applied to have a
temporary guardianship. One son was disqualified and
the other (son) was appointed temporary guardian. A
longtime friend of Erickson (friend) challenged son for
both temporary and permanent guardianship.
The trial court appointed friend as permanent
guardian and entered a finding that son had cruelly
treated Erickson and ordered his removal as temporary
guardian. Son appealed the factual sufficiency of his
removal and argued that the appointment of friend was
premature.
In addressing the issue of the appointment of a
permanent guardian the court looks to jurisdiction. In
citing TPC section 633(f) the court states that there are
no optional procedures for invoking jurisdiction and that
there must be compliance for a trial court’s jurisdiction.
In this case, the court held a hearing on several
issues before the expiration of the 10-day period set out
by the TPC. Initially, the hearing was for several
motions to be considered, but after its conclusion, the
Court stated in open court that “friend is named as
permanent guardian of the estate” but did not sign the
order until the 10-day period expired.
The Appellate court ruled that “judgement in this
case was rendered by the court’s oral pronouncement of
judgement in open court.”
Friend argued that all parties had waived any
jurisdictional requirements but the court did not agree.
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The court stated that the TPC implies that a proposed
ward may not waive jurisdictional procedures according
to sections 633(e) and 635. The court also points to the
small amount of case law on point that also backs up this
reasoning.
Therefore, the trial court did not have jurisdiction to
appoint a permanent guardian until the 10 days had run
and it’s appointment is void.
In addressing the removal of son as temporary
guardian the court pointed out that he could be removed
under several sections of the TPC, specifically, sections
761(a)(7),(c)(6)-(6-a) and 875. The court expressly
upheld the trial court’s removal of son under section 875
of the TPC because it was in Erickson’s best interest.
The court also pointed out that Erickson could be in
limbo after its ruling leaving her without a guardian, but
specifically mentioned that the attorney ad litem could
protect her interests until such time that a new guardian
was appointed.
HEADS UP! The court has discretion to appoint and
remove a guardian. Calender all dates related to
guardianship procedures as this is the foundation of the
process. Most attorneys may pay closer attention to the
recent legislative changes regarding timing of
Inventories, Monthly Allowances, etc., but do not forget
the importance of the basics.
III. ATTORNEY AD LITEM FEES
A. TEXAS MUNICIPAL LEAGUE v. BURNS
This is a complicated worker’s compensation case
that briefly touched on the awarding of ad litem fees.
Appellants complained that fees were improperly
awarded to the ad litem since there is no statutory
authority to support the award.
The court looks to section 34A of the TPC in
showing that an ad litem “...is entitled to reasonable
compensation for services in the amount set by the court
and to be taxed as costs in the proceeding.” It also points
to section 622(a) which provides that “the laws
regulating costs in ordinary civil cases apply to a
guardianship matter unless otherwise expressly provided
for by this chapter.”
In linking these provisions with Texas Rule of Civil
Procedure 131 which provides that a “successful party to
a suit shall recover from its adversary all costs incurred
therein,” the courts states that the trial court was
authorized to assess the ad litem’s fee’s against the
appellants.
HEADS UP! In our orders appointing guardians and
discharging the ad litem, stating the fees awarded to the
Guardianship Case Law Update 2007
ad litem is always attached to the statement that such fees
shall be taxed as costs.
IV. AUTHORITY OF GUARDIAN
A. JOHNSON V. MCCLINTOCK
Ward owned three tracts of land, 1, 2, and 3. In
1993 a guardian was appointed for Ward. In 1994,
guardian petitioned the court for permission to sell tract
1 to appellee. Appellants contested the sale and the
probate court denied guardian’s request.
Also in 1994, and without the court’s permission,
guardian executed a quitclaim deed purporting to transfer
tract 2 to appellee. In 1995 guardian executed another
quitclaim deed purporting to transfer tract 3 to appellee.
The Ward died in 1995 and in the ensuing eleven years,
appellee paid off a lien that HUD had placed on the
property. After paying off the lien in 2003, appellee filed
suit to quiet title.
The court simply points to section 820 of the TPC
and states that a guardian does not have authority to
convey the property of a ward without approval from the
probate court.
Noting that the quitclaim deeds transferred “all the
right, title, land, interest and claim” that guardian had,
the court stated that without the court’s permission,
guardian had no right, title, interest, or claim to either
tract, and therefore, guardian conveyed nothing by the
quitclaim deeds.
HEADS UP! We often view guardianships as a last
alternative in the care of an individual and this is why.
The court will have to grant guardian authority to take
certain actions on behalf of the Ward. This restrictive
relationship is in place for the protection of the Ward.
B. DIPORTANOVA V. MONROE
This is actually a probate case addressing whether
the filing of a declaratory action by a beneficiary violated
an in terrorem clause.
Guardian, on behalf of an estate beneficiary sought
a declaration that trustees were authorized to fund a
proposed gift to another beneficiary.
The court stated that since the guardian did not seek
to modify, vary, set aside, or nullify the terms of the
codicils, that the guardian did not violate the in terrorem
clauses.
HEADS UP! Guardians have the authority to bring
actions on behalf of the Ward, but remember that the
guardian stands in the Ward’s shoes. Therefore, as a
guardian you must be careful not to nullify anything for
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the Ward due to your actions (or inaction).
C. IN RE GUARDIANSHIP OF ARCHER
Niece brought a derivative legal malpractice claim
on behalf of her uncle’s temporary guardian, alleging that
the temporary guardian had failed or refused to prosecute
the lawsuit.
Uncle suffered a stroke that affected his mental
abilities. After the stroke, he made changes to his estate
plan under the guidance of his girlfriend and several
attorneys.
In 2000, guardianship proceedings were instituted in
probate court and in separate hearings an attorney ad
litem, guardian ad litem, and temporary guardian were all
appointed.
Niece brought suit for, among other things,
malpractice and breach of fiduciary duty against the
estate planning attorneys and the attorney ad litem, and
breach of fiduciary duty against the temporary guardian.
Niece claimed that she was a person interested in the
estate of her uncle and therefore had standing to bring the
lawsuit and because the attorney ad litem had failed or
refused to prosecute the lawsuit.
In her argument, niece cited several probate estate
cases to support her ability to bring a derivative lawsuit.
The court stated that it begins with TPC section 773
which holds that only a guardian of the ward’s estate may
bring a lawsuit on behalf of the ward.
The ad litem countered, and the court agreed, with
the position that you simply should not overlay
guardianship law with decedent’s estate law.
Specifically, unlike heirs with a present property interest
in an estate, a guardian has no property interest in the
guardianship estate.
The court points out that as an “interested person”
under section 601(15) of the TPC, she could only seek
removal of the temporary guardian and bring an action
against the guardian for damages.
The court points out that if niece were able to bring
suit on the guardian’s behalf, it would circumvent the
bonded guardian who owes a fiduciary duty to the ward.
Therefore, according to the court, niece lacked
standing and capacity to bring her action.
HEADS UP! Remember, other family members and the
court are watching the actions of fiduciaries. Keep this
in mind in light of the Belt v. Oppenheimer ruling.
V. EXAMINATIONS AND REPORTS
A. KARLEN V. KARLEN
Son filed for appointment of guardian of the person
and estate of mom. Included with his application was a
Guardianship Case Law Update 2007
physician’s report of medical examination dated almost
one year prior to the filing stating that mom was
suffering from dementia and needing full time care. Son
also filed a motion for an independent medical
examination stating that his brother prevented him from
access to mom.
The trial court appointed an independent
investigator and a guardian ad litem. Both appointees
concluded that mom was not in need of a guardian. Mom
then filed a motion to dismiss which the court granted.
Son appealed arguing that the court erred in denying
his request for an independent medical examination
pursuant to TRCP 204 and TPC section 687(b).
The court noted first that TRCP 204 does not apply
to guardianship proceedings. TPC 687(b) gives the court
discretion to appoint a physician to examine the proposed
ward.
The court ruled based on the discretion of the court.
In pointing out that TPC section 687(b) states that if the
court determines it is necessary, it may appoint
physicians to examine a proposed ward. The court states
that the legislature clearly intended to give trial courts
some degree of latitude to factually determine whether it
is necessary to appoint a physician to examine a
proposed ward.
Here, the court pointed to the testimony of the
guardian ad litem stating that mom did not need a
guardian, the report of the investigator stating that mom
did not need a guardian, and the report of another
physician stating that there was no evidence of
incapacitation or the need for a guardian.
Therefore, the trial court had substantial evidence in
front of it supporting a ruling that a medical examination
was not necessary and did not abuse its discretion.
HEADS UP! It seems logical that the court must have
discretionary power or else be bound to order a medical
exam in all cases that petition for one. If you request a
medical examination for a proposed ward, there needs to
be some factual basis that the court can consider, and
even then that could be outweighed by the evidence for
no examination.
B. ROBINSON V. WILLINGHAM
Ward appealed the appointment of niece as
permanent guardian of his person and estate. Ward was
79 years old and married. Ward executed a durable
power of attorney to niece. Wife had Alzheimer’s disease
and after wife fell ill niece was appointed her guardian
Niece testified that Ward had become dangerous to
those around him and uncharacteristically impulsive with
his money including giving substantial amounts of
money to women he barely knew or just met. There was
also testimony regarding a severe decrease in Ward’s
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ability to drive creating a danger to others and evidenced
by three failed DPS administered driving tests.
The parties submitted competing medical reports
upon the hearing to appoint a guardian. Niece’s doctor,
a neurologist, who examined Ward diagnosed mild
dementia and probable Alzheimer’s disease based upon
an MRI showing atrophy in the brain. The doctor
certified that Ward was partially incapacitated.
Ward’s doctor, a psychologist, examined him after
these examinations by niece’s doctor. Ward’s doctor
conducted the exam and then had lunch with him finding
no need for a guardianship.
The trial court found that Ward was partially
incapacitated and appointed niece as guardian. Ward
appealed challenging the sufficiency of the evidence to
support the appointment of a guardian and that Ward did
not waive physician-patient privilege with respect to his
examination by the neurologist.
The court cited TPC section 684 in showing what
evidence the court must find before appointing a
guardian.
In dealing with the issue of error in allowing the
examination report that was privileged, the court pointed
out that Ward had not preserved this error. Specifically,
he did not object when niece offered the certificate at the
hearing. Ward’s attorney stated “We have no objection
to the introduction of the documents.”
Therefore, after review the evidence before it,
including the Ward’s testimony, the trial court did not
abuse its discretion in appointing niece as guardian.
HEADS UP! If you want to preserve the error, you must
object to the error at the proper time. With physician
certificates this generally arises in the above scenario or
with a hearsay objection. You must object at the time of
introduction to preserve the error.
Guardianship Case Law Update 2007
VI. JURISDICTION
A. IN RE GUARDIANSHIP OF GIBBS
Siblings and mom were beneficiaries of a trust
which stated that with the agreement of mom and three of
the four children, additional funds could be removed
from the trust for mom’s benefit. In fear of the
impending Y2K scare, three of the children agreed with
mom to withdraw $1,015,000 from the trust. With that
money, approximately $701,000 went to purchase gold
coins and other funds went to purchase food and other
items in preparation of Y2K.
Son was not informed of these withdrawals and filed
suit for a constructive trust to be established and on May
7, 2001, filed an application for temporary guardianship
over mom’s estate. On May 15, 2001, the trial court
entered an order extending the temporary guardianship
until July 6, 2001.
On June 29, 2001, son filed an application to
convert the temporary guardianship of mom’s estate to a
permanent guardianship. Siblings never contested the
temporary guardianship application but on July 13, 2001,
they contested the application to convert the
guardianship.
On October 5, 2001, the trial court issued an order
to extend the temporary guardianship until “further order
of this court.” Included in the October 5 order was a
transfer as an ancillary action to the guardianship action
son’s restitution and breach of fiduciary duty claims.
On April 27, 2004, the trial court ordered the
temporary guardianship converted to permanent. On
September 13, 2004 the underlying suit came to trial, the
siblings did not attend and son was awarded
$1060,799.21 in actual and punitive damages.
Siblings appealed that the probate court had no
subject matter jurisdiction over the restitution and breach
of fiduciary duty claims since guardianship provided no
jurisdiction for the probate court because it expired by
operation of law on July 6, 2001. Son countered with
jurisdictional arguments under TPC sections 5 and 5A
and section 115.001(d) of the Texas Trust Code.
The court stated that son’s claims for restitution and
breach of fiduciary duty do not “involve” or “concern”
trusts as those terms are used in the statutes. Therefore,
son could not rely on TPC sections 5 and 5A or trust
code section 115.001.
Under TPC section 875(h), a temporary
guardianship expires by operation of law sixty days after
the guardianship is commenced, unless it’s contested
within the sixty day period. If it is contested with that
period TPC section 875(k) provides that the court may
appoint a new temporary guardian.
In this case, the sixtieth day was July 6, 2001. Since
the siblings did not contest the temporary guardianship,
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and the probate court did not appoint a new temporary
guardian, the temporary guardianship expired by
operation of law on July 6, 2001.
Once the temporary guardianship expired, the court
was only authorized to take those actions necessary to
close the guardianship and discharge the temporary
guardian. It was not authorized to further extend the
temporary guardianship, transfer the underlying claims or
convert the temporary to a permanent guardianship.
The court distinguishes between the court not losing
jurisdiction over an expired guardianship and that
jurisdiction being limited by statute, citing TPC section
878 and 879.
HEADS UP! Again, calender all the dates related to
guardianship proceedings whether you think they will
come into play or not.
B. IN RE OESTREICH
Guardian’s appointment by county court was
challenged by family. Family also contested guardian’s
motion for authority to act on behalf of the Ward. Family
was lessee of real property under the guardianship estate
and requested transfer to district court any contested
matters.
The motions were all resolved and with the district
court finding that there were no contested matters before
it, it referred the entire case back to county court.
Guardian filed suit against family in county court
and included a motion requesting appointment of a
statutory probate court. The probate court refused to hear
the suit. The district court ordered that it retained
jurisdiction of all contested matters herein and
specifically this suit.
The court cites TPC section 606 as the basis for
guardianship proceedings stating that the county court
has jurisdiction when there is no probate court or county
court at law. It then points to the exception that the
county court may on a motion transfer to district court the
contested portion of the proceeding. After a transfer, the
county court continues jurisdiction over the management
of the guardianship with the exception of th contested
matter until final disposition is made by the district court.
Citing TPC section 606(b-3) the court states that on
resolution of the contested matter, the district court shall
transfer the resolved portion of the case to the county
court. Therefore, the TPC imposes a duty on the district
court to return the resolved portion of the proceeding to
the county court.
In this case, since the district court transferred the
proceeding back to the county court, the district court
was divested of jurisdiction.
HEADS UP! Jurisdiction is a threshold matter. Know
Guardianship Case Law Update 2007 Chapter 10

the rules and how your case fits into the parameters of
the TPC jurisdiction section.
C. IN RE MOON
Application for appointment of guardian, and
several claims and cross-claims, and motions filed.
The relevant part to our discussion is the court citing
TPC section 745(a)(2) and pointing out that when a ward
dies, the probate court loses jurisdiction of the
guardianship matter, except for the filing of the final
accounting and closing of the guardianship.
guardianship law this year is HB 417 which as of this
writing has made it out of committee. Changes can and
will be made, but you may follow its progress via the
web and you can find links to the Texas Legislature at
texasprobate.com.
HB 417 addresses several issues including attorneys
acting as guardian only able to charge their attorney rate
for legal services, and issues relating to joint managing
conservators and co-guardians.
Word also has it that the Legislative Council is
about to embark upon codification of the TPC. So, get
ready for things to look different.

D. IN RE MASK

Ward appealed order granting temporary limited

guardianship of her person and estate.
Ward’s grandsons filed an emergency application
for appointment of temporary guardian asserting that
Ward an incapacitated person. The next day, the trial
court signed an order appointing grandsons temporary
guardians and authorizing them to spend up to $10,000
of Ward’s assets.
However, it is undisputed that Ward was not
notified of the application for temporary guardianship or
the hearing as required by the TPC.
When Ward found out about the proceedings, she
brought a mandamus action.
The court looks to jurisdiction for its reasoning
stating that for a trial court to have jurisdiction over a
party, the party must be properly before the court.
The court further shows that the TPC does not
authorize an ex parte or interim appointment of a
temporary guardian pending the resolution of an
application.
According to TPC section 875, a respondent in a
temporary guardianship proceeding must be served with
notice before a hearing is held on the application.
According to TPC section 874, a person for who a
temporary guardian is appointed “may not presumed to
be incapacitated.”
Therefore, the court had no jurisdiction over Ward,
and the order appointing temporary guardianship was
rendered void.

HEADS UP! Where to start? We don’t live in a facist

regime. When you are attempting to take somebody’s
rights away, they need to know about it before it
happens. Otherwise, I fear that college aged children
across Texas will run to the courthouse to get access to
mom and dad’s money.

VII. LEGISLATIVE HEADS UP

The primary piece of legislation affecting