Office Information
Thursday
Aug292013

Miscellaneous Guardianship Changes

  1. Information Letters.  There was much hubbub in this session about guardianship proceedings resulting from information letters presented to the court by family members or third parties under prior Probate Code Section 683A.  After the dust settled, the successor to that section (Estates Code Section 1102.003) was amended to require information letters submitted by family members of the proposed ward to be sworn to before a notary public or include a written declaration under penalty of perjury that the information is true to the best of the person’s knowledge.  This requirement does not apply to non-family members.
  2. Management Trusts for Disabled Persons.  Guardianship management trusts (formerly known as 867 trusts) were overhauled to make it easier for a person suffering a physical disability only to apply for and benefit from a trust.  Persons suffering a physical disability only may benefit from a management trust in order to qualify for government benefits.  Since they do not lack mental capacity, they do not need the protections built into the management trust statutes.  Therefore, while ad litems are permitted (and may be necessary for some government benefits programs, since the applicant for benefits may not be able to apply for creation of his or her own management trust), they are not required.  Tex. Est. Code Sec. 1301.054 (c-1).  Also, corporate trustees are not required for management trusts for persons suffering a physical disability only (Section 1301.057(b)), a bond is not required, trustee compensation need not be approved by the court (Section 1301.101(a-1)), and accountings need not be filed with the court (Section 1301.154(d)).
  3. Changes in Orders Appointing Guardians.  If a guardian of the person is given the right to have physical possession of the ward and to establish the ward’s legal domicile, the order appointing the guardian must contain a conspicuous statement addressed to Texas peace officers stating that the officer may use reasonable efforts to enforce the right of the guardian of the person to have physical possession of the ward or to establish the ward’s legal domicile.  Tex. Est. Code Sec. 1101.151(c) and 1101.152(c).