x-Did Not Pass: SB 1027 -- Attorney/guardians can't provide legal services

Caption: Relating to the provision of legal services by a guardian in connection with a guardianship.
Author: Harris
Bill History
Bill Text

Relevance: This bill would add Section 773A to the Probate Code, reading: "An attorney who services as guardian may not provide legal services in connection with the guardianship." It would repeal Section 665D, which was added in 2009 and which provides that an attorney serving as guardian who also provides legal services (1) must file detailed billing with the court and (2) "is not entitled to payment of attorney's fees for guardianship services that are not legal services."

x-Did Not Pass: HB 1934 -- Attorneys' fees of beneficiary in will contest

Caption: Relating to an allowance from a decedent's estate for devisees in and beneficiaries of a will who defend and prosecute certain proceedings relating to the will.
Author: Woolley
Bill History
Bill Text

Relevance: If HB 1934 passes, a beneficiary in a will contest must be successful in that litigation in order to be eligible to have his or her attorneys' fees paid from the decedent's estate. Currently, Texas Probate Code Section 243 permits the court to award attorneys' fees to an beneficiary who acts in good faith and with just cause whether successful or not.

Ad litem fees and attorneys' fees in guardianships: who pays?

Who should pay attorney ad litem fees, guardian ad litem fees, the applicant's attorneys' fees and other costs when someone applies for the creation of a guardianship? Three bills now pending in the Texas Legislature take different approaches.

Jane Nelson, Author of SB 220

Under Section 665A of the Texas Probate Code, the proposed ward's estate is charged with attorney ad litem fees, guardian ad litem fees and other costs -- whether or not the application for appointment of a guardian is successful -- unless his or her estate is insufficient to pay those fees and costs, in which case the county bears the expense. 

Under Section 665B, if a guardianship or management trust is created, the court may order that any applicant's attorneys' fees be paid from the ward's estate, or from the county treasury, if the court finds that the applicant acting in good faith and for just cause.

Is it fair that the ward's or the proposed ward's estate is required to pay the costs of the attorney ad litem or guardian ad litem? Are there times when another party should have to bear those expenses? Should the county treasury be stuck with ad litem fees and costs and the applicant's attorneys' fees if the proposed ward's estate is insufficient to pay them? 

Chris Harris, Author of SB 286

SB 286 would add this sentence to Section 665A: "The court may allocate attorney's fees taxed as costs under this section among the parties as the court finds is fair and just." This bill, authored by Sen. Chris Harris (R-Arlington), would allow the judge to make another party pay the costs of attorneys ad litem, guardians ad litem, interpreters, etc., if it is "fair and just" to do so. Section 665B is amended to permit the applicant's attorneys' fees to be allocated among the parties to the guardianship proceeding "as the court finds is fair and just," so long as a guardianship or management trust is created. SB 286 also requires ad litem fees under Section 665A and the applicant's attorneys' fees under Section 665B to be set in an amount which is "fair and just."

SB 220 takes a similar approach.  This bill, authored by Sen. Jane Nelson (R-Flower Mound), amends Section 665A to permit the court to "allocate amounts taxed as costs under this section among the parties as the court finds is just and equitable." It provides that, if the proposed ward's estate is unable to pay "the costs allocated to the proposed ward," the county is responsible for those costs. SB 220 also amends Section 665B to permit the applicant's attorneys' fees to be "allocated as the court finds is just and equitable," so long as the court creates a guardianship or management trust. 

Surely if it is "fair and just" to allocate costs and fees to a party under SB 286, it also will be "just and equitable" to do so under SB 220. Perhaps the bills could be reconciled so that costs and fees are allocated if it is "fair, just and equitable" to do so.

Will Hartnett, Author of HB 1325

HB 1325 gives the court less authority to charge others with ad litem fees. This bill, authored by Rep. Will Hartnett (R-Dallas), would add subsection (b) to Section 665A: "If the proposed ward's assets are insufficient to pay for the cost of an attorney ad litem appointed under this chapter, the court may order the applicant in the guardianship proceeding to pay that cost." A similar change to Section 669 would provide the same treatment for guardian ad litem fees.

HB 1325 would allow the court to relieve the county treasury of the obligation to pay an attorney ad litem or guardian ad litem if the proposed ward's estate was unable to bear that cost. It would not permit assessing these costs against the applicant or other parties if the proposed ward's estate is able to bear them. The authority of the court to assess costs and the applicant's attorney's fees in SB 220 and SB 286 does not depend on whether or not the proposed ward is unable to pay those costs and fees.

Some judges have wanted the power to assess costs and fees in guardianships against litigants whose conduct demonstrates that they should bear them. SB 220 and SB 286 give them that authority. HB 1325 does not.

x-Did Not Pass: HB 1837 -- REPTL guardianship bill

Caption: Relating to guardianships and alternatives to guardianship for persons who have physical disabilities or who are incapacitated.

Author: Hartnett

Bill History

Bill Text

Relevance: This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It makes multiple changes to the guardianship statutes in the Texas Probate Code. These include:

• Changing the guardianship jurisdiction statutes in a way that is consistent to 2009's changes to the decedents' estates jurisdiction statutes. This is related to the enactment of the new Estates Code. (Sections 601, 605, 606A, 607A, 607B, 607C, 607D, 607E, and other technical changes) 

• Clarifies that an attorney ad litem appointed in a temporary guardianship continues to serve until a permanent guardian is appointed or the guardianship application is denied. (Section 646)

• Eliminates the 5% of income and 5% of disbursement method of determining guardianship compensation in favor of a "reasonable compensation" standard. (Section 665)

• Makes it easier for the conservator of an adult disabled child to obtain a guardianship of that child. (Section 682A)

• Fixes some technical problems caused by 2009 changes to the physician's certificate requirements for guardianships. (Section 687)

• Eliminates the need to list other co-owners of property on guardianship inventories. (Sections 729 and 730)

• Clarifies that a guardianship of the estate shall be settled when all of the guardianship assets are transferred to a pooled trust subaccount. (Section 745)

• In the settlement of a guardianship estate, the attorney ad litem's fees may be taxed as costs instead of automatically coming from the ward's estate. (Section 745)

• Changes the maximum age for a guardian of a person to "voluntarily" admit the ward to an inpatient psychiatric facility from 16 to 18. (Section 770)

• Makes it possible to apply to the court for permission to transfer a portion of the ward's estate "as necessary to qualify the ward for government benefits." (Section 865)

• Permits a person with a physical disability only to apply for creation of a guardianship management trust (which may be necessary to qualify for governmental benefits). (Sections 867, 868, 868C, 869 and 870) The court cannot require the trustee of a trust created for a person with a physical disability only to file annual or final accountings. (Sections 871 and 873)

• Requires the trustee of a guardianship management trust to file an "initial accounting" (the equivalent of an inventory) within 30 days after the date a trustee receives property. (Section 870A

• Clarifies who can apply for the establishment of a pooled trust subaccount and who is eligible for a pooled trust subaccount. (Sections 910 and 911)

See "REPTL bills would make changes to trusts, guardianships and powers of attorney" on texasprobate.com. 

x-Did Not Pass: HB 1325 -- Ad litem fees in guardianships

Caption:  Relating to payment of the costs for services of a guardian ad litem and attorney ad litem in a guardianship proceeding.
Author:  Hartnett
Bill History
Bill Text

Relevance:  This bill would permit the court to order the applicant to pay ad litem fees, but only if the proposed ward's assets are insufficient. 

See "Ad litem fees and attorneys' fees in guardianships: who pays?" on texasprobate.com.

x-Did Not Pass: SB 286 -- Costs in guardianships

Caption:  Relating to attorney's fees and other amounts taxed as costs in guardianship proceedings.
Author:  Harris
Bill History
Bill Text 

Relevance:  This bill would amend Probate Code Sections 665A and 665B to permit the court to allocate costs in a guardianship proceeding among the parties as the court finds is fair and just.  Costs include compensation of attorneys ad litem, guardians ad litem, mental health professionals and interpreters.

See "Ad litem fees and attorneys' fees in guardianships: who pays?" on texasprobate.com.