Guardianship

Addressing Legal Concerns

of Parents
The Filis Law Firm, PC
Leona E. Filis, Attorney at Law
 The Filis Law Firm, P.C.
website: www.filislaw.com email: leona@filislaw.com
713-462-1777

Disclaimer for Presentation

The materials on this presentation are for informational purposes
only and not for the purpose of providing legal advice. You should
contact your attorney to obtain advice with respect to
any particular issue.
Use of the materials of this presentation do not create an attorney-
client relationship between Leona E. Filis of The Filis Law Firm,
PC and any member of the audience.
 Guardianship

Guardianship of the Person

and
Guardianship of the Estate
 Types of Guardianship
Guardian of the Person –determines where ward lives, ensure care,
supervision and protection, food, shelter, medical care; provides consent to
medical, psychiatric, and surgical treatment other than psychiatric
commitment.
Guardian of the Estate-entitled to the possession and management of all
real and personal property belonging to the ward.
There can be Guardian of Person & Estate or Limited Guardianships
 Guardianship
A legal proceeding in which (typically) a family member asks to the
court to make a determination/finding that a person is unable to
make decisions about their healthcare, housing, food, clothing, and
other subjects that affect the person.
The proposed ward will be served with citation by a sheriff or other
officer.
 Guardianship Court Case
The Court will appoint an Attorney Ad Litem to represent the proposed
ward’s interests. The Court may appoint a Guardian Ad , who is an officer
of the Court, to represent the interests of an incapacitated person.
Chapter 1103 of the Estates Code allows an applicant to file 6 months
before the 18th birthday of the proposed ward. A parent can “fast track” the
process if he or she was appointed conservator of a disabled child in a
Decree in Family Court. Talk to an attorney about Section 1103.002 of the
Estates Code to be appointed guardian without a hearing.
 The Guardian Process
• Hire an attorney with Guardianship experience to file an
Application for Appointment of Guardian of the Person.
• The proposed Guardian will need a criminal background check
performed on his/her own self as it is required in the process.
• There will be a medical examination performed on the proposed
ward.
 Certification for Attorneys
EC-§1054.201 is amended to require attorneys for an applicant for
guardianship to be certified by the State Bar of Texas:
• as having completed a course of study in GS law consisting of four
hours of credit
• including one hour on alternatives to GS and supports and services
available to proposed wards.
• Court appointed attorneys (AAL & GAL) now have four hour
certification requirement too
 Criminal Background Checks

• EC-1104.402(a)(5) all proposed guardians other than

attorneys must now undergo criminal background checks
• Avoid felony revelations at guardianship hearings.
• Register the guardianship with the JBCC and take the online
training.
 Physician’s Certificate
1101.103(b) is amended to:
• State whether improvement in proposed ward’s mental
functioning is possible, and if so, state the period after which
proposed ward should be reevaluated to determine whether
guardianship still needed.
• State whether a guardianship is necessary for the proposed
ward, and if so, whether specific powers or duties of the
guardianship should be limited if the proposed ward receives
supports and services.
 Physician’s Certificate
1101.103(b) is amended to:
• State how proposed ward’s ability to make decisions is affected
by the proposed ward’s physical or mental health, including
proposed ward’s ability to:
• Solve problems (replaces “perform simple calculations”)
• Administer to daily life activities (adds) “with and without
supports and services.”
 Partial or Total Incapacity
• 1101.101(c) is added as a “finding” requirement for Orders
• Applications should allege whether a proposed ward is totally without
capacity or partially without capacity
• A finding of partial incapacity by the court must specifically state
whether the proposed ward lacks the capacity, or lacks sufficient
capacity with supports and services, to make personal decisions
regarding residence, voting, operating a motor vehicle, and marriage.
• Therefore, applications alleging partial incapacity should also address
limitations on the proposed ward’s right to marry
 Preference as to Guardian
• 1104.002 modified
• Even if the proposed ward has not executed a Designation of
Guardian before need arises under 1104.202, court is to make a
reasonable effort to consider the proposed ward’s preference as to
the person to be appointed as guardian
• Court is to give due consideration to the preference as to guardian
indicated by the proposed ward. Ad litem is to assist the proposed
ward in making this preference known to the court
 Guardian of Person Reports
1163.1011 amended

• A guardian of the person who is required to file an annual report

with the court, including a guardian filing the annual report
electronically, may use an unsworn declaration instead of the
sworn declaration previously required.
Parents of children with disabilities depended on courts to order
Guardianship of the Person for parents to maintain the status
quo after their child turned 18, but Guardianship may not
properly fit your situation.

The Texas Estates Code offers less restrictive alternatives to

Guardianship.
 Thank you for your attention!
The Filis Law Firm, PC
This presentation is for informative and educational purposes
only and is not legal advice or an endorsement of
programs or groups included herein.
Leona@filislaw.com
www.filislaw.com
www.houstonspecialneedsattorneys.com

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