5110  Time Frames for Aging-Out-Child (AOC) Applications

Policy: The GS shall ensure the guardianship application is filed within Probate Code and program requirements when DADS decides to file for guardianship of an AOC referral.

Required Procedures – The GS:

• files an application for guardianship of an AOC no earlier than 180 days before the proposed ward reaches his or her 18th birthday;
• asks the court to set the hearing date either:
• before the child's 18th birthday, with a provision the guardianship will take effect on the child's 18th birthday; or
• on or immediately following the child's 18th birthday if the court will not permit the hearing to be held prior to the child turning 18;
• includes a request in the guardianship application for permission to resign as guardian for an AOC with an IQ of 55-69 as determined from the DMR if the adult eligibility review from SSA determines the AOC is not eligible for adult SSI; and
• documents requests to the court in the GOLD case record.

Discussion and Relevant Information. Guardianship of an AOC cannot become effective before the AOC's 18th birthday although a hearing can be held before then. The application is filed as soon as possible within the 180 day time frame in order to facilitate scheduling of the hearing.

DADS and CPS agree the guardianship process should not be delayed waiting for the determination of adult SSI when an AOC being referred is on child SSI. Should a formal request to the Social Security Administration for determination of adult SSI be denied, DADS will request the court for permission to resign as all wards served by DADS must have a source of funding for their care. It is important the judge be made aware of this provision in the application prior to the hearing.

References:
Probate Code §682A

5120  Temporary Guardianship – General Information.

DADS may file an application for temporary guardianship when:

• a referral made to DADS is assessed as requiring emergency intervention including an APS referral involving an Emergency Order of Protective Services (EOPS);
• there is substantial evidence of incapacity;
• it is determined to be in the best interest of the proposed ward;
• an order for protective services will not resolve the emergency; and
• there is imminent danger to the client and/or his or her estate will be seriously damaged or dissipated unless immediate action is taken.

5121  Application for Temporary Guardianship.

Policy: The GS shall ensure only those powers or duties are sought in an application for temporary guardianship that best protect the proposed ward and his or her interests.

• The GS shall also consider requesting a temporary restraining order in order to protect the estate.

Required Procedures – The GS:

• consults with the supervisor and the regional guardianship attorney to determine what orders to prepare and to determine if there is other needed information;
• follows procedures outlined in Section 5100, General Application Procedures;
• prepares the Order Paying the Attorney Ad Litem, Form 5068 (if applicable and unless the AAL prepares it), and the Order Appointing Temporary Guardian of Person [and Estate], Form 5135, and other anticipated orders pertaining to a temporary guardianship prior to the 10-day temporary guardianship hearing;
• requests APS file:
• an emergency order for protective services in conjunction with the application for temporary guardianship; or
• an injunction against interference with APS investigation or provision of APS services, if APS believes the ward and/or his estate is in need of protection before the 10-day hearing appointing temporary guardian is held; and
• documents consultations, actions taken, and requests made to APS in the GOLD case record.

Discussion and Relevant Information. In accordance with Probate Code §875(g), the GS prepares the Application for Temporary Guardianship requesting only the powers and duties necessary to protect the ward and/or his or her estate from imminent danger or harm. After an application for temporary guardianship is filed, the court appoints an attorney ad litem (AAL), the parties required under the Probate Code are notified by DADS, and the hearing is held within 10 days unless the hearing date is postponed by the court upon consent of the attorney ad litem. DADS does not serve as temporary guardian until appointed at the hearing.

References:
Section 5100, General Application Procedures
Probate Code § 875(f)(1) and (2)
Order Paying Attorney Ad Litem, Form 5068
Application for Appointment of Temporary Guardian of Person [and Estate], Form 5135

5122  Certificate of Medical Examination or Determination of Mental Retardation in Temporary or Permanent Guardianship

5122.1  Certificate of Medical Examination in Temporary or Permanent Guardianship

Policy: The GS shall obtain and file the Physician's Certificate of Medical Examination (CME), as applicable, with the application for temporary or permanent guardianship unless it is impractical to do so by the filing date.

Required Procedures – The GS:

• seeks and receives supervisory approval prior to obtaining a CME when guardianship is indicated;
• makes reasonable efforts to obtain and file the Physician's Certificate of Medical Examination (CME) at the time the Application for Temporary or Permanent Guardianship is filed;
• may also choose to file the following if there are coexisting factors present related to intellectual disability or a related condition:
• a Determination of Mental Retardation (DMR);
• an updated DMR; or
• a DMR with endorsement, with the application as outlined in Section 5122.2, Determination of Mental Retardation in Temporary or Permanent Guardianship;
• consults with the supervisor, and if directed to do so, with the regional guardianship attorney as to the proper certificate(s) and/or report(s) to file with the guardianship application;
• provides Form 5108, Physician's Certificate of Medical Examination for Guardianship, or an appropriate county-based form or court-approved form to the examiner and ensures it is completed and returned directly to DADS;
• makes available to the examiner all case information provided by DFPS, including referral form and any medical information received from DFPS;
• provides the examiner with the name and contact information of the APS Specialist;
• may seek a subsequent CME, if appropriate;
• requests the assistance of the referral source (i.e., APS or CPS) in obtaining the cooperation of the proposed ward if necessary;
• requests a court-ordered evaluation of the proposed ward if appropriate in those instances where a Certificate of Medical Examination (CME) could not be obtained despite reasonable efforts to do so;
• furnishes DFPS with a copy of the CME obtained during the guardianship assessment within five business days from receipt of the CME; and
• documents all activities and requests pertaining to obtaining the CME in the GOLD case record.

Discussion and Relevant Information. When considering the basis for guardianship, a CME is obtained if the alleged incapacity is based on factors unrelated to intellectual disability or a related condition. The GS coordinates with the referral source (i.e., APS or CPS) in obtaining the CME, as appropriate, within the following guidelines:

Coordination with APS in obtaining the CME includes:

• obtaining the names of physicians or psychiatrists who may perform the examination;
• arranging for the examination of the proposed ward;
• selecting a physician or psychiatrist who will bill APS for the examination rather than expect payment in advance;
• notifying APS of the completion of the examination; and
• coordinating with APS to ensure payment of the examiner.

If medical records indicating a lack of capacity already exist, the GS considers this information in the assessment process. The GS will consult with the physician or other professional who provided the statement. The GS may seek a subsequent CME if there is reason to believe it would be beneficial. If a subsequent CME is sought, the GS provides the physician issuing the subsequent CME all case information provided by APS, including the referral form and any medical information, and the name and contact information for the APSS.

The CME is part of the guardianship application filed before a hearing. However, if the proposed ward refuses to be examined, the application may be filed without the CME. A limited temporary guardianship may be sought asking for a court order to compel examination.

DADS may obtain a CME for an alternate guardian or may assist an alternate guardian in obtaining a CME following discussion and approval from program management.

DADS will furnish APS with a copy of the CME obtained during the guardianship assessment within five business days following receipt of the document, as outlined in the APS MOU.

References:
Section 2510, Performing an Assessment of an APS Referral
Section 2610, Performing an Assessment of a CPS Referral
Probate Code §687(a)
Form 5108, Physician’s Certificate of Medical Examination for Guardianship

5122.2  Determination of Mental Retardation in Temporary or Permanent Guardianship

Policy: The GS shall file the Determination of Mental Retardation (DMR), as applicable, in the case of alleged intellectual disability or a related condition, with the application for temporary or permanent guardianship, unless it is impractical to do so by the filing date.

Required Procedures – The GS:

• upon supervisory approval to proceed with guardianship, files the DMR provided by the referral source (i.e., APS or CPS) consistent with Texas Probate Code §687(c) with the Application for Temporary or Permanent Guardianship, within the following guidelines:
• requests CPS to obtain an updated DMR or DMR with endorsement from the local authority (LA) if one is not provided with the referral;
• may request an updated DMR or a DMR with endorsement from the appropriate LA for filing with the application, in compliance with Texas Probate Code §687(c) if CPS is unable to provide it; and
• may also choose to file a Physician's Certificate of Medical Examination (CME), or will file in counties which require both a DMR and CME, as applicable, with the application, as outlined in Section 5122.1, Certificate of Medical Examination in Temporary or Permanent Guardianship;
• consults with the supervisor, and if directed to do so, with the regional guardianship attorney as to the proper certificate(s) and/or report(s) to file with the guardianship application;
• requests the assistance of CPS or APS, if appropriate, in obtaining the updated or endorsed DMR if necessary; and
• documents all activities and requests related to obtaining an updated DMR or a DMR with endorsement in the GOLD case record.

Discussion and Relevant Information. When considering the basis for guardianship, a DMR is obtained if the alleged incapacity is to be based on intellectual disability or a related condition. CPS has agreed to furnish a DMR or a DMR with endorsement with the referral. However, if for some reason CPS does not provide the DMR following a request, the GS may request a DMR from the LA following consultation with the supervisor. In cases involving coexisting conditions not related to intellectual disability or a related condition (such as closed head injury), the GS may also file a CME as appropriate. In counties which require both a DMR and CME regardless of coexisting conditions, both the DMR and CME will be filed with the application. The GS coordinates with the referral source (i.e., APS or CPS) in obtaining the updated DMR or DMR with endorsement, as appropriate. An application with a DMR must be filed prior to the hearing. The DMR is part of the guardianship application.

DADS is responsible for obtaining a DMR or its update or endorsement. DFPS agrees to provide DADS all medical, psychological, or information, including prior DMRs, about a referred person, and to provide reasonable assistance necessary to obtain a DMR.

References:
Section 2510, Performing an Assessment of an APS Referral
Section 2610, Performing an Assessment of a CPS Referral
Probate Code §687(c)
Form 5108, Physician’s Certificate of Medical Examination for Guardianship

5123  Expiration of Temporary Guardianship

Policy: The GS shall determine, before the expiration of the temporary guardianship, whether permanent guardianship is necessary.

Required Procedures – The GS:

• considers the stability of the case during temporary guardianship;
• determines if there are less restrictive alternatives available or if there is an alternate guardian willing to serve and if either appears viable:
• arranges for the less restrictive alternative or recommends DFPS pursue the alternative; or
• if there is an individual who is available to serve as guardian:
• determines if they are appropriate by interviewing the proposed guardian and collaterals; and
• requests the proposed guardian to file for permanent guardianship, if appropriate;
• determines, in consultation with the supervisor, if a permanent guardianship is needed to resolve the individual's situation and is in the individual's best interests;
• follows procedures outlined in Section 5100, General Application Procedures, if permanent guardianship is indicated;
• follows steps outlined in Section 5124, Final Accounting in Temporary Guardianship, when temporary guardianship of estate has expired;
• files a final report of the person and an application for discharge of guardian, when temporary guardian of the person has expired;
• completes the Property Acknowledgment and Property Review and Condition Checklist, returns all property to the proposed ward or to an alternate guardian as appropriate, and obtains a signature on the Property Acknowledgment verifying the return and condition of the property; and
• closes the case if it is determined permanent guardianship is not necessary.

Discussion and Relevant Information. Permanent guardianship may not be appropriate if the abuse, neglect, or exploitation is resolved during the temporary guardianship, or a less restrictive alternative appears to be suitable, or if there is an individual who is suitable and who expresses a willingness to become guardian. Depending on the court order, a temporary guardianship may automatically expire in 60 days. This expiration means the temporary guardian is no longer the guardian and the ward is no longer a ward. However, a former guardian still has the final duties to account, report, and to obtain closure and discharge from the court. If DADS was appointed temporary GOE, it is important to return the property to the proposed ward or an alternate guardian as appropriate and to document the condition of the property and obtain a written acknowledge of the return and condition.

References:
Section 5100, General Application Procedures
Section 5124, Final Accounting in Temporary Guardianship
Property Acknowledgment, Form 5036
Property Review and Condition Checklist, Form 5024

5124  Final Accounting in Temporary Guardianships

Policy: The GS shall file the legal documents to close the final accounting within 30 days of the expiration of the temporary guardianship unless required sooner by the court.

Required Procedures – The GS:

• prepares the Final Accounting for Temporary Guardianship form along with the:
• Verification of Funds on Deposit, Form 5052;
• Tax information, including:
• Tax returns filed during the guardianship;
• A complete account of the taxes the guardian paid during the guardianship, including the amount of taxes, the date the guardian paid the taxes, and the name of the governmental entity to which the guardian paid the taxes; and
• A description of all current delinquencies in the filing of the tax returns and the payment of taxes and a reason for each delinquency;
• submits the final accounting to the supervisor and the regional guardianship attorney for his or her review and approval;
• files the Final Accounting for Temporary Guardian for the Period, Form 5118, and Order Approving Final Accounting in Temporary Guardianship with the court;
• closes the case once the Order Approving Final Accounting in Temporary Guardianship is signed by the judge, unless permanent guardianship will be pursued; and
• scans and attaches file-stamped copies of the Final Accounting, Order Approving Final Accounting, and related documents to the GOLD record.

Discussion and Relevant Information. Probate Code §878 requires a final accounting for temporary guardianship after the expiration of the temporary guardianship. If there are extenuating circumstances where a final accounting of a temporary guardianship cannot be filed within 30 days after expiration, the ROM must be notified and his or her guidance sought. It is important to close these guardianships as expeditiously as possible. If given a deadline by the court that cannot be met, the GS should approach the supervisor, the ROM and the regional guardianship attorney about requesting an extension from the court.

References:
Probate Code §§878, 879
Verification of Funds on Deposit, Form 5052
Final Accounting for Temporary Guardian for the Period, Form 5118

5130  Successor Guardian – General Information

A successor guardian may be appointed by the court if:

• the court has removed a previous guardian (Probate Code §761);
• the guardian dies or resigns; or
• the court or another party or person initiates a motion for a successor guardian to be appointed.

DADS may be appointed successor guardian for wards placed more than 100 miles from the court creating the guardianship in certain circumstances.

5131  Court Intention to Appoint DADS as Successor Guardian

Policy: The GS shall notify the guardianship supervisor and the regional guardianship attorney when a notification (verbal or written) is received that the court intends to appoint DADS as successor guardian.

Required Procedures – The GS:

• notifies the supervisor and regional guardianship attorney;
• follows directions of the supervisor if an assessment is needed under Section 5132.1 Successor Appointment for Wards Placed 100 miles from court creating Guardianship; and
• does not sign the Oath of Guardian until such time as he or she receives written authorization from the supervisor or state office program management.

Required Procedures – The supervisor:

• consults with the regional guardianship attorney;
• notifies the ROM and the chief guardianship attorney, upon receiving notification from the GS that the court intends to appoint DADS as guardian; and
• gives written direction to the GS as to whether or not he or she is to sign the oath unless program management indicates they will do so.

Discussion and Relevant Information. In cases where DADS is appointed successor guardian by a court, the GS follows procedures outlined by program when accepting such appointment. In certain circumstances, the court may remove a guardian as the result of an APS investigation. In this event, DADS will receive the referral from APS and not the court.

References:
Section 2700, Assessing Requests Received From a Court or Third Party
Section 5132.1, Successor Appointment for Wards Placed 100 miles from Court Creating Guardianship

5132  Standard Successor Appointment of DADS as Guardian

Policy: The GS shall sign the Oath of Guardian upon receiving written authorization from the guardianship supervisor or state office management when DADS is appointed as successor guardian.

Required Procedures – The GS:

• ensures procedures were followed in receiving authorization from program management before signing the Oath of Permanent Guardian, Form 5067;
• once the oath is signed, the GS:
• receives the ward's estate from the former guardian, if appointed as guardian of the estate;
• provides a receipt but not a release to the former guardian, if requested;
• compares property received from the former guardian with the former guardian's final accounting to ensure all property is accounted for;
• returns an Initial Inventory of the Estate and List of Claims (Initial Inventory), Form 5038, to the court in 30 calendar days if appointed as guardian of the estate;
• notes in the Initial Inventory discrepancies with the former guardian's final accounting;
• verifies (e.g., checks the court file and, if possible, questions the former guardian) to determine if a Notice to Creditors has been filed;
• files a Notice to Creditors, Form 5063, only upon confirmation that such notice has not been filed by a previous guardian;
• consults with his or her supervisor and the regional guardianship attorney about the need to:
• report the former guardian to law enforcement, if appropriate; and
• bring suit on the bond of the former guardian if all the ward's estate is not accounted for by the previous guardian (Probate Code §763), if applicable; and
• provides a release to the former guardian (upon request) if all of the estate is accounted for, if no claims exist against the former guardian, and such release is in the best interest of the ward and his or her estate; and
• ensures all consultations and actions are documented and all relevant reports and documents are scanned and attached to the GOLD record and made part of the paper case file.

Discussion and Relevant Information. If the former guardian was removed by the court for failure to file accountings, the GS compares the estate received from the former guardian with the last accounting filed or the initial inventory. Notice to Creditors and Notice to Comptroller of Public Accounts are not required to be repeated for successor guardianship, unless the former guardian did not send them. Charges filed subsequent to a report to law enforcement are filed by the district or county attorney.

References:
Section 2700, Assessing Requests Received From a Court or Third Party
Section 5720, Initial Inventory, Appraisement and List of Claims
Section 5450, Notice to Creditors
Probate Code §§763, 785
Oath of Permanent Guardian, Form 5067
Initial Inventory of the Estate and List of Claims, Form 5038
Notice to Creditors, Form 5063

5132.1  Successor Appointment for Wards Placed 100 Miles from Court Creating Guardianship

Policy: The GS shall assess a referral request from a court which created a guardianship upon determining whether a slot is available and upon authorization from state office program management.

Policy: The GS shall sign the Oath of Guardian upon receiving written authorization from the guardianship supervisor or state office management when DADS is appointed as successor guardian of a ward of the court located more than 100 miles from the court of original jurisdiction.

Required Procedures – The guardianship supervisor:

• notifies state office when a request is received to become successor guardian of a ward of the court who is located 100 miles or more from the court of original jurisdiction;
• follows the direction of state office program management;
• assigns the proposed ward to a GS for an abbreviated assessment process when directed to do so by program management.

Required Procedures – The GS:

• performs an abbreviated assessment to determine the following:
• mileage from court that created the guardianship to placement location;
• a source of funding exists for the ward;
• whether there are appropriate and available less restrictive alternatives; and,
• whether there is an alternate successor guardian appropriate and available;
• ensures authorization is received from program management before signing the Oath of Permanent Guardian, Form 5067;
• once the oath is signed, the GS:
• receives the ward's estate from the former guardian, if appointed as guardian of the estate;
• provides a receipt but not a release to the former guardian, if requested;
• compares property received from the former guardian with the former guardian's final accounting to ensure all property is accounted for;
• returns an Initial Inventory of the Estate and List of Claims (Initial Inventory), Form 5038, to the court in 30 calendar days if appointed as guardian of the estate;
• notes in the Initial Inventory discrepancies with the former guardian's final accounting;
• verifies (e.g., checks the court file and, if possible, questions the former guardian) to determine if a Notice to Creditors has been filed;
• files a Notice to Creditors, Form 5063, only upon confirmation that such notice has not been filed by a previous guardian;
• consults with his or her supervisor and the regional guardianship attorney about the need to:
• report the former guardian to law enforcement, if appropriate; and
• bring suit on the bond of the former guardian if all the ward's estate is not accounted for by the previous guardian (Probate Code §763), if applicable; and
• provides a release to the former guardian (upon request) if all of the estate is accounted for, if no claims exist against the former guardian, and such release is in the best interest of the ward and his or her estate; and
• ensures all consultations and actions are documented and all relevant reports and documents are scanned and attached to the GOLD record and made part of the paper case file.

Discussion and Relevant Information. A court with the guardianship may appoint DADS successor guardian if the ward is located more than 100 miles from the court which created the guardianship. Because of transfers, the court with the guardianship may not always be the same court that created the guardianship. DADS follows the distribution plan established by the program to determine if there are slots available to the court creating the guardianship. If there are none available, the ward is placed on a waiting list maintained by state office for the first slot to become available to this court. If the court creating the guardianship does not agree to use their slot, the successor guardian request will be considered on a case-by-case basis and may be denied. The number of slots allocated annually is capped at 55. DADS reallocates unused slots each June.

If the former guardian was removed by the court for failure to file accountings, the GS compares the estate received from the former guardian with the last accounting filed or the initial inventory. Notice to Creditors and Notice to Comptroller of Public Accounts are not required to be repeated for successor guardianship, unless the former guardian did not send them. Charges filed subsequent to a report to law enforcement are filed by the district or county attorney.

References:
Section 2700, Assessing Requests Received From a Court or Third Party
Section 5720, Initial Inventory, Appraisement and List of Claims
Section 5450, Notice to Creditors
Human Resources Code §§161.101
Probate Code §§ 695, 763, and 785
Oath of Permanent Guardian, Form 5067
Initial Inventory of the Estate and List of Claims, Form 5038
Notice to Creditors, Form 5063

5133  Successor Guardian of a DADS Ward

Policy: The GS shall adhere to notification requirements found in the Probate Code and shall notify the court when a potential successor guardian is identified.

Required Procedures – The GS:

• reviews the guardianship annually at the time of the annual report to determine if a family member, friend, other interested party or guardianship program is now available and willing and able to serve as guardian of a DADS ward;
• consults with his or her supervisor if there is a possible successor guardian, interviews the proposed successor guardian and collaterals;
• submits a notice notifying the court of the person or program willing and able to serve as successor guardian in accordance with Probate Code §695A and Human Resources Code §161.108; and
• scans and attaches copies of all relevant documents to the GOLD case record and places a copy in the paper case file.

Court Requests DADS to file the Motion – The GS:

• notifies the supervisor and the regional guardianship attorney and seeks information as to the appropriate attorney to handle the case;
• consults with the regional guardianship attorney, or other attorney as appropriate, regarding resignation and successor guardianship;
• follows the direction of the guardianship supervisor and the appropriate attorney;
• prepares and files the Final Accounting; and
• documents all consultations, notifications and directions in the GOLD case record.

Successor Guardian has qualified – The GS:

• delivers the ward's property to the successor guardian of the estate or guardian of the person if limited to personal effects, obtains a receipt; and
• updates GOLD by documenting information concerning the successor guardian.

Discussion and Relevant Information. If a governmental entity or a guardianship program serving as guardian for a ward becomes aware of a family member or friend of the ward or other interested party who is willing and able to serve as the ward's successor guardian, Probate Code §695A requires the governmental agency or guardianship program to notify the court. Human Resources Code §161.108 further requires DADS to review its guardianships annually for a more suitable guardian and to notify the court if it becomes aware of an individual or guardianship program willing and able to serve as guardian.

Once notified, the court determines whether the proposed successor guardian is qualified to serve as the successor guardian of the ward. If the court finds the proposed successor guardian is not disqualified from being appointed as guardian and the appointment is in the ward's best interest, the court on its own motion may file an application to appoint the individual as the ward's successor guardian or may request DADS to file the application (Probate Code §695A(b) and (c)).

References:
Section 5890, Account for Final Settlement
Section 6213, Designation of Guardianship Type
Section 5140, Outside Legal Representation
Probate Code §695A (b) and (c)
Human Resources Code §161.108

5140  Outside Legal Representation

Policy: The GS shall consult with his or her supervisor and with the regional guardianship attorney before approaching another attorney for legal representation.

Required Procedures – The GS:

• approaches the appropriate county or district attorney about representing DADS during the application process and enters the contact information about the attorney providing legal representation in the GOLD case record;
• notifies the supervisor and the regional guardianship attorney, if the county or district attorney declines to represent DADS;
• provides the attorney representing DADS with information related to the case;
• works with the attorney to prepare evidence for court, identify witnesses, etc;
• offers to assist with the preparation of the legal paperwork and associated documents, unless the attorney prefers to do so, according to guidelines outlined in Section 5200, Completion of Legal Forms;
• documents all consultations in the GOLD case record; and
• scans and attaches relevant documents to the GOLD file.

Required Procedures – The regional guardianship attorney:

• assists in working with the county or district attorney to provide representation for the application for guardianship; and
• assists the GS with matters pertaining to administration of the guardianship once the guardianship is obtained unless the county or district attorney wishes to do so.

Discussion and Relevant Information. Human Resources Code §161.110(a) states in pertinent part, "the prosecuting attorney representing the state in criminal cases in the county court shall represent the department in any proceeding under this subchapter unless the representation would be a conflict of interest." Human Resources Code §161.101(f) states in pertinent part, "In a county having a population of more than 2.8 million , the prosecuting attorney representing the state in civil cases in the county court shall represent the department in any proceeding under this subchapter unless the representation would be a conflict of interest."

If the county or district attorney does not represent the department, the Office of the Attorney General (OAG) provides the representation unless it is unable to do so. The OAG may deputize a DADS regional guardianship attorney to provide representation. As of 2005, all of the DADS regional guardianship attorneys and certain other DADS attorneys are deputized by the Attorney General.

Examples of matters pertaining to administration of the guardianship include:

• Selling property;
• Transferring the guardianship case to another county if the ward moves; and
• Applying for termination of the guardianship if the ward dies.

References:
Section 5200, Completion of Legal Forms
Human Resources Code §§161.101(f) and 161.110(a)

5141  Public and Private Legal Services

Policy: The GS shall make a referral for the ward or a proposed ward to the local bar association, attorney referrals services, or legal aid centers when they are in need of an attorney for situations other than those addressed in this section.

Required Procedures – The GS:

• consults with the guardianship supervisor and the regional guardianship attorney to determine:
• the best course of action when a ward is in need of legal advice in matters other than guardianship (e.g., child custody, violation of the law, personal injury, etc.);
• how the judge should be notified;
• if there are other actions to be taken; and
• documents all consultations in the GOLD case record.

Discussion and Relevant Information. Circumstances may arise during a guardianship or during a pending guardianship materially affecting the ward or his or her well-being. Legal referral may be appropriate to attempt to remedy a matter involving the ward or proposed ward. The GS seeks input from program staff when recommending or initiating a legal referral.

References: N/A

5142  Guardianship of Citizen of Another Country

Policy: The GS shall notify the guardianship supervisor and the regional guardianship attorney during the time of assessment of an individual who is a citizen of a foreign country even if the individual is a permanent resident of the United States.

• The GS shall follow the direction of the guardianship supervisor, the regional guardianship staff, the chief guardianship attorney or a member of the state management team in notifying the proper foreign consulate.

Required Procedures – The GS:

• consults with the guardianship supervisor and the regional guardianship attorney during the assessment process when it is identified the individual is a citizen of a foreign country;
• follows the required processes and procedures for referrals and assessments as outlined in Section 2000;
• explores alternatives and resources with the foreign consul for the person in their country of citizenship;
• documents consultations and notifications in the GOLD case record; and
• completes the formal notification to the foreign consulate as directed.

Discussion and Relevant Information. In accordance to the Vienna Convention on Consular Relations Treaty, states must notify the foreign consulates of certain actions involving foreign nations. Under this treaty, DADS has a duty to give the consul notice anytime they seek to obtain guardianship of a person lacking capacity who is a foreign national. Giving notice to the consul will help to ensure DADS receives information the consul may have about any family or community resources in the home country. Consular notice is not required for dual citizens of the U.S. and another country.

It is most useful to notify the consul early in the case as there may be information helpful to ensure the most appropriate alternatives are pursued. The regional guardianship attorney may assist in preparing a form or a form letter for official notification and shall provide direction as to what legal issues need to be addressed.

References:
www.state.gov/s/cpr/rls/fco/69458.htm

5210  Signing Legal Forms

Policy: The GS shall sign legal documents only as necessary except for those outlined in program guidelines requiring an attorney signature.

• The GS shall provide the appropriate attorney forms requiring his or her signature.

Required Procedures – The GS:

• signs the following documents without the additional signature of an attorney:
• the Guardianship Specialist Affidavit and Verification form, Form 5045, attached to the original petition setting forth the facts in support of the petition;
• the application for mental commitment;
• Notice to Court of Change of Guardianship Worker, Form 5060; and
• Notice of Death of Ward, Form 5043:
• ensures other legal documents filed with the court are submitted to the regional guardianship attorney or the attorney representing DADS for review before they are filed with the court;
• ensures documents requiring signatures are signed by the GS and the attorney representing DADS as indicated; and
• consults the attorney representing DADS or the regional guardianship attorney if there is a doubt as to who signs the forms.

Discussion and Relevant Information. DADS forms, located in GOLD, include the correct signature lines. When these forms are used, the GS signs the forms as indicated.

References:
Notice of Death of Ward, Form 5043
Affidavit of Guardianship Specialist Form, Form 5045
Notice to Court of Change of Guardianship Worker Form, Form 5060

5220  Legal Review of Guardianship Forms

Policy: The GS shall coordinate with the regional guardianship attorney as needed to ensure applicable filing requirements are met.

Required Procedures – The GS:

• gives the regional guardianship attorney or the attorney representing DADS adequate time to review, revise and sign legal forms prior to the anticipated filing of the forms with the court;
• coordinates efforts with the regional guardianship attorney or the attorney representing DADS to meet filing requirements;
• documents exceptions to the one week review as agreed to by the GS, the supervisor, the regional guardianship attorney, supervising attorney, or the chief guardianship attorney, in the event the supervising attorney is not available;
• notifies the regional guardianship attorney when draft forms are available in the GOLD case record for review;
• ensures the regional guardianship attorney reviews any legal documents which will be filed by the county or district attorney before they are sent to them; and
• scans and attaches file-stamped copies of the legal forms to the GOLD case record.

Required Procedures – The guardianship supervisor:

• monitors the preparation and completion of legal forms to ensure legal forms are completed as required.

Required Procedures – The regional guardianship attorney:

• completes his or her review of the forms within one week unless there are exceptions warranted in certain cases (e.g., contested cases, legal action needed for protection of a client, a complex annual account, etc.);
• ensures the signed forms are returned to the GS upon completion of their review, via inter-office mail, hand delivery or other agreed upon method with the guardianship supervisor;
• coordinates efforts with the GS for alternative arrangements if the review cannot be completed in one week and consults with the guardianship supervisor, supervising attorney, or the chief guardianship attorney in such cases; and
• furnishes the GS with written documentation (i.e. e-mail) of the alternative arrangement.

Discussion and Relevant Information. The Probate Code sets specific filing requirements for required reports and accountings in guardianship cases and imposes penalties when these deadlines are missed. As noted in Section 5200, Completion of Legal Forms, the attorney who is signing the prepared forms is affirming their legal accuracy, which requires a thorough review. It is important to consider the complexity of the legal review required when completing the forms and asking for legal review.

References:
Section 5200, Completion of Legal Forms

5310  Filing Legal Documents by Mail

Policy: The GS shall adhere to the required procedures when filing legal documents by mail (United States Postal Service [USPS]) and shall ensure filing requirements are met.

Required Procedures – The GS:

• files legal documents by mail using certified mail, return receipt requested, when appropriate;
• notes on the green card the type of document and name of the ward (for example, annual accounting for John Doe);
• sends two copies of the document, a self-addressed, stamped envelope and a cover letter requesting the clerk to mail back a file-stamped copy of the document;
• attaches the return receipt signed by the court to a copy of the legal document and retains it in the case record; and
• scans and attaches the return receipt to the GOLD case record.

Discussion and Relevant Information. Policy 5310 is to be followed when legal documents are filed by mail. However, the program's preferred method of filing is by hand delivery to the court by the Guardianship Specialist. If the distance to a specific county is great as to be cost prohibitive and unreasonable, then filing by mail may occur. It is the responsibility of the GS to file the legal documents. However, on occasion the regional guardianship attorney may be going to the court house and offer to file the documents. This should not be routine and customary but is to be used in occasional situations.

Texas Rules of Civil Procedure (TRCP) 5 allows a party to file a document (such as an application, motion, annual accounting, or annual report) with the court by mail. It must be postmarked on or before any filing deadline and must arrive at court no later than 10 calendar days after it is due. The document must be sent by first class mail certified with proper postage, the correct delivery address, and bear United States Postal Service (USPS) Postmark. The filing date of the document is the date it is postmarked. This rule does not work with private delivery services such as FedEx or United Parcel Service (UPS), which is why those services cannot be used for this purpose.

A file copy of the documents should be kept in the case record until the file-stamped copy is returned. When the file-stamped copy is returned, a copy is attached to the GOLD case record and the original is placed in the paper case file.

References:
Texas Rules of Civil Procedure 5

5410  Citation in Guardianship Cases

Policy: The GS shall ensure the clerk of court is requested to issue a citation as required by the Probate Code.

Required Procedures – The GS:

• reviews documentation and pertinent information in cases where the proposed ward is an AOC to determine if the parental rights have been terminated. If parental rights have not been terminated, the GS:
• checks the accuracy of the last known address for both parents and includes the correct address in the application; or
• includes in the application, if unable to locate the parents:
• the date of the parents' last known contact with the proposed ward, if known; and
• language describing the reasonable efforts and the results of his or her attempts to locate the parents of the proposed ward;
• consults with the attorney representing DADS to determine if he or she prefers to request the clerk of court issue the citations or if he or she wants the GS to make the request and documents the results of the consultation;
• requests the clerk of court to issue citation, unless the attorney representing DADS prefers to do so;
• obtains a copy of the citation with the completed return of service from the clerk;
• obtains a copy of the posted notice after it has been up for 10 days and returned to the clerk; and
• scans and attaches a copy of the citation and posted notice to the GOLD case record and places the original in the paper case record.

Discussion and Relevant Information. The GS or the attorney representing DADS must specifically request, verbally at the time of the filing or by separate cover letter, the clerk to issue citation to the parties named and request the citation be served by the constable or sheriff's department. DADS is exempt from a service of process fee when the function is performed by a constable or the sheriff's department. However, DADS is not exempt from paying a private process server and does not use private process servers. Unless citation is issued and served, a guardianship hearing cannot be conducted.

Once the guardianship application is filed, the clerk issues a citation:

• stating the application was filed;
• providing the names of the proposed ward and the applicant; and
• citing persons interested in the welfare of the proposed ward to appear at the time and place designated in the notice if they wish to contest the guardianship.

The citation is posted at the courthouse as well as personally served on required individuals (Probate Code §§633(b) and 633(c)). If a served party does not answer or appear, the court may proceed on the case without them. Probate Code §633(f) establishes a 10 day cooling off period after posted notice, service of citation and the notices to adult children.

Individuals who must be personally served citation by the sheriff or other officer are (Probate Code §633(c)):

• a proposed ward who is over 12 years of age;
• any court-appointed conservator or person having control of the care and welfare of the proposed ward;
• the proposed ward's spouse, if the whereabouts can be reasonably ascertained;
• an attorney ad litem;
• a guardian ad litem; and
• the proposed ward's parents, if known, unless parental rights have been terminated by the court.

If the parental rights of a proposed ward have been terminated, notification of the parents is not required, as in the case of an AOC. However, the GS should obtain a copy of the decree or order of termination for the file and provide a copy to the attorney representing DADS in the guardianship proceeding. The attorney may introduce it in court or may have the GS testify about it in response to a question.

References:
Probate Code §§633(b), 633(c) and 633(f)

5420  Notice in Guardianship Cases

Policy: The GS shall ensure persons entitled to notice of the guardianship application receive such notice.

Required Procedures – The GS:

• sends copies of the notice and application pertaining to the guardianship hearing by certified or registered mail, return receipt requested, restricted delivery to the addressee only, to individuals entitled to notice as soon as possible after filing the application (Probate Code §633(d));
• files with the court an Applicant's Affidavit for Proof of Notice, Form 5064, before the hearing indicating to whom the notice was mailed and stating the notice was mailed as required;
• files with the court a copy of the notice sent and the original return receipt (green card) or unclaimed letter before the hearing (Probate Code §633(d)); and
• files a copy of the notice, copy of the return receipt, copy of the attached application and a file-stamped copy of the affidavit in the paper case file, and attaches copies to the GOLD case record.

Discussion and Relevant Information. Persons Entitled to Notice – Under Probate Code §633, individuals entitled to notice in guardianship cases are:

• all adult siblings and all adult children of a proposed ward;
• the administrator or operator of a residential or nursing facility in which a proposed ward resides;
• a person known to hold a power of attorney (POA) signed by a proposed ward;
• a person designated by the proposed ward to serve as guardian by a written declaration under Probate Code §679;
• a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the ward;
• a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving parent, if the declarant is deceased and the applicant knows of the existence of the declaration; and
• a relative within the third degree by consanguinity in the application for guardianship. Adult relatives within the third degree by consanguinity are included in the application if there is no spouse, or there are no parents, adult siblings or adult children or they are all deceased.

The Probate Code replaced "next of kin" with "other living relatives who are related to the proposed ward within the third degree by consanguinity." The list of relatives within the third degree by consanguinity includes the following persons: parent, child, brother, sister, grandparent, grandchild, great-grandparent, great-grandchild, aunt or uncle by blood, and niece or nephew by blood.

When there is no living spouse, parent, adult sibling or adult child, DADS must notify a living grandparent, grandchild, great-grandparent, great-grandchild, aunt or uncle by blood, or niece or nephew by blood who is an adult. For this purpose, relationships through legal adoption are included. Relationships through marriage are not included.

In temporary guardianships, notices to the above listed individuals is not required under the Probate Code. However, DADS may notify these individuals for other legal or practical reasons or as directed by the court. There may not be adequate time to get all parties notified and the green cards returned. In those cases, the GS documents all efforts to notify the individuals in the GOLD case record.

References:
Probate Code §§633(d), 679 and 682(12)(E)
Applicant's Affidavit for Proof of Notice Form, Form 5064

5430  Notification to Adult Siblings when Parental Rights have been Terminated

Policy: The GS shall make reasonable efforts to ensure all adult siblings of a proposed ward entitled to notice of a guardianship proceeding receive it in a manner consistent with Probate Code requirements.

Required Procedures – The GS:

• uses the Notification to Adult Siblings Letter, Form 5044, when providing notice of the guardianship hearing. This letter to the adult sibling tells him or her:
• he or she may attend the hearing if he or she so chooses;
• he or she may apply for guardianship; and
• the names of other family members who have been notified of the hearing.
• files the signed return receipt or the returned unclaimed letter in the paper case file and attaches a copy to the GOLD case record; and
• completes the Guardian's Affidavit for Proof of Notice (Adopted Adult Siblings), Form 5049, files it with the court, and includes a file-stamped copy in the paper case file and attaches it to the GOLD case record.

Discussion and Relevant Information. According to Probate Code §633, all adult siblings of a proposed ward are entitled to notification when an application for guardianship has been made to the court. This applies even if:

• parental rights have been terminated between the proposed ward and his or her parents, or between the adult sibling and the mutual parents; or
• the proposed ward or his or her adult sibling has been adopted.

The GS makes reasonable efforts to notify a proposed ward's adult sibling who has been adopted only when he or she has access to the last known address of the adoptive family. The GS considers confidentiality laws as well as the possibility an adult sibling who has been adopted may not wish to have contact with members of his or her family of origin.

In such cases, when completing the Application for Temporary or Permanent Guardianship, the GS inserts the following statement in §IX, number 4:

"Proposed ward has an adult sibling who was adopted as a child by a family unconnected to the proposed ward. In accordance with Chapter 162 of the Texas Family Code, which makes the adoptive name confidential, the name and address of this adult sibling are not listed in this application. Applicant will send a certified letter to the last known address of the adopted sibling, thereby affording the sibling an opportunity to participate in this hearing. When the return receipt or unclaimed letter is returned to applicant, applicant will file an Affidavit of Proof of Service with the court that does not disclose the identity or location of this sibling so as to keep this information confidential."

Source: Texas Family Code, Chapter 162

References:
Probate Code §633(d)
Texas Family Code, Chapter 162
Guardian's Affidavit for Proof of Notice (Adopted Adult Siblings) Form, Form 5049
Notification to Adult Siblings Letter, Form 5044

5440  Waiver of Citation and Notice – General Information.

Any person entitled to receive notice or personal service, other than the proposed ward, may waive his or her right to citation and notice of the hearing by signing a waiver, which is filed with the clerk (Probate Code §635). A proposed ward must be personally served. Neither the proposed ward nor the attorney ad litem for the proposed ward can waive personal service on the proposed ward under any circumstances.

A waiver of citation and notice may also have language waiving the recipient's right to serve as guardian of the proposed ward. It is not mandatory to obtain from family members a waiver of the right to be appointed guardian, but it may help to avoid later disputes about the recipient's desire to serve and to expedite the guardianship hearing. Without an express waiver, the court may still take the recipient's failure to answer or appear at the hearing after receipt of notice or citation as waiver by default. In order to be legally valid, waivers obtained, including waivers of the right to be served citation and notice and waivers of the right to be appointed as guardian, should not be signed until after the guardianship application is filed and must be signed before a notary public and filed with the court. A copy of all signed waivers is attached to the GOLD case record and filed with the paper case record.

5450  Notice to Creditors

Policy: The GS shall comply with program guidelines and legal requirements applicable to posted or published Notices to Creditors in guardianships of the estate.

Required Procedures – The GS:

• sends notice to known creditors within the time frame established by TPC §784;
• completes procedures as outlined in the Table 5000-1, Notice to Creditors, and Table 5000-2, Notice to Known Creditors, depending on the situation; and
• attaches copies of all notices and court filings to the GOLD case record and places hard copies in the paper case file.

Table 5000-1, Notice to Creditors

Table 5000-2, Notice to Known Creditors

Permanent Guardianship. Within four months of qualification of DADS as guardian of the estate, guardianship staff prepare and mail the Letter to Creditors form to all known creditors (return receipt requested). If there are no known creditors, this task is not required. In addition, staff follow the procedures below depending on whether the creditor is secured or unsecured:

Discussion and Relevant Information. Unlike permanent guardianship, published or posted notice is not required during temporary guardianship. Published or posted notice is not required during successor guardianship if the prior guardian completed it. When determining whether to publish notice in a successor guardianship, guardianship staff check the case file in the court clerk's office to determine whether the prior guardian published or posted notice and filed it with the court. If not, guardianship staff publish or post notice and file it according to the guidelines for permanent guardianship, above. The GS may request assistance from another DADS employee (e.g., GA, AA, another GS, etc.) to prepare the notice to creditors upon approval of the supervisor. However, the GS must review it for completeness and accuracy and sign the verification, if any.

References:
Probate Code §§783 and 784
Section 4310, Order of Paying Claims

5460  Notice to Comptroller of Public Accounts

Policy: The GS shall comply with program guidelines and legal requirements applicable to Notice to Comptroller of Public Accounts in guardianships of the estate.

Required Procedures – The GS:

• sends notice by certified or registered mail to the comptroller within one month after receiving letters of guardianship (Probate Code §783(a)) if the ward recently paid or owed taxes to the comptroller of public accounts;
• contacts the comptroller's toll-free number for inquiries if unsure whether notice is required in a given situation; and
• attaches a copy of the notice to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Taxes collected by the comptroller include but are not limited to:

• sales taxes collected by a business the ward owned; or
• inheritance taxes on an estate of a deceased person who died on or before December 31, 2004, if the ward inherited from that estate or served as an executor/administrator of the estate and the inheritance tax was not paid. Texas did not tax estates of deceased persons below a certain gross amount based on the year of death per the chart below. There is currently no Texas inheritance tax on estates of persons who died on or after January 1, 2005.

The GS addresses the notice to:

If the GS is unsure whether notice is required in a given situation, he or she may call the comptroller's toll-free number for inquiries at (800) 531-5441.

Notice to Comptroller is not required during temporary guardianship. Notice to Comptroller is required during successor guardianship only when no previous guardian completed it. When determining whether to give notice, the guardianship staff check the case file in the clerk's office to determine whether the prior guardian gave notice and filed it with the court. If not, guardianship staff give notice according to the guidelines for permanent guardianship, above.

The GS requests, as needed, another DADS employee (e.g., the AA, GA, another GS, etc.) to prepare the notice document, upon approval of the supervisor.

References:
Probate Code §783(a)

5470  Notification to Department of Veterans Affairs

Policy: The GS shall comply with requirements pertaining to Notification to Department of Veterans Affairs when a ward receives VA benefits.

Required Procedures – The GS:

• determines if the ward is a recipient of benefits from the Department of Veterans Affairs;
• asks the court to set the hearing date not less than 20 calendar days from the date of the filing of:
• the initial inventory and list of claims;
• a motion to invest funds;
• an annual accounting; or
• the final accounting, when DADS is guardian of the estate for a recipient of Department of Veterans Affairs benefits;
• gives notice of the date of filing to the office of the Department of Veterans Affairs in whose territory the court is located by mailing the Department of Veterans Affairs Letter, Form 5053, and a certified copy of the application, claim or account no later than five calendar days after the date of the filing (Probate Code §636);
• requests, as needed, assistance from another DADS employee (e.g., GA, AA, another GS, etc.) in preparing the notice for signature by the GS, upon approval of the supervisor;
• documents all consultations, notifications and actions in the GOLD case record; and
• attaches a copy of the notice to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. The GS gives notice any time DADS is guardian of the estate, whether or not DADS is also representative payee of the veteran's benefits. The GS sends the required notice according to the list found in Appendix XIX: VA Regional Offices by Counties Served.

When looking for military service records for a ward, a resource is the local county clerk's office. Some returning veterans filed their DD-214 (record of service and discharge) with their county clerk, where a certified copy may be obtained.

The National Personnel Records Center is another resource. The center may be contacted at:

Hours

Monday through Friday, 7:30 a.m. to 3:45 p.m.
(Closed weekends and Federal holidays)

Contact Information

Telephone: 314-801-0800
E-mail: MPR.center@nara.gov*
Status Check: mpr.status@nara.gov*
Fax: 314-801-9195

or on the Internet:

www.archives.gov/st-louis/military-personnel/

References:
Probate Code §636
Department of Veteran Affairs Letter, Form 5053
Appendix XIX, VA Regional Offices by Counties Served

5510  Court Investigator/Court Visitor – Release of Information

Policy: The GS shall only share information related to HIV/AIDS status with court investigators and court visitors if DADS has been appointed guardian or upon direction of the regional guardianship attorney.

• The GS shall only share information related to HIV/AIDS status and information related to investigations (APS or CPS) for wards or proposed wards as outlined in required procedures below.

Required Procedures – The GS:

• shares information related to the AIDS/HIV-positive status of the proposed ward if DADS has not yet been appointed as guardian only in the following situations:
• if the proposed ward is an adult and gives the GS written permission to share the information; or
• if the proposed ward is a minor in CPS conservatorship and CPS gives permission to share the information;
• shares all information related to the APS case or the CPS case (AOC) except:
• the name and other identifying information about the reporter of abuse, neglect or exploitation; and
• the AIDS/HIV-positive status of a proposed ward; and
• consults with the regional guardianship attorney, as needed, and follows his or her instructions in providing information.

Discussion and Relevant Information. Courts hearing guardianship matters vary from county to county and include county courts, county courts-at-law, statutory probate courts, and rarely, district courts. In statutory probate courts, which are generally found in larger cities, a court investigator will be appointed to investigate the circumstances alleged in the application to determine if guardianship is the appropriate means of handling the case. In addition, the court investigator investigates complaints about existing guardianships and supervises the court visitor program (Probate Code §§648 and 648A).

Statutory probate courts are required to operate a court visitor program. The purpose of the court visitor program is to:

• assess the needs of the ward or proposed ward; and
• make a report to court.

Any interested person, a ward, a proposed ward, or the court by its own motion, can make a request for an assessment at any time before the appointment of a guardian or during a pending guardianship. According to need, other courts having jurisdiction over guardianships, such as county courts, may operate a court visitor program. Some use volunteers in this capacity (Probate Code §648).

References:
Section 6520, Proposed Wards Who Have AIDS or are HIV-Positive
Probate Code §§648 and 648A
42 U.S.C.A. §300ff-61
Health & Safety Code (H&SC) §81.103

5520  Attorney Ad Litem or Guardian Ad Litem

Policy: The GS shall work in a cooperative manner with an attorney ad litem or a guardian ad litem in a guardianship proceeding to the extent possible, as appropriate.

Required Procedures – The GS:

• contacts the attorney ad litem or guardian ad litem once he or she is appointed, depending on the practice in that particular county;
• explains the role of DADS in regard to the proposed ward;
• offers to assist the attorney ad litem or guardian ad litem in contacting the proposed ward;
• enters the information about the attorney ad litem or guardian ad litem in the collateral area of the GOLD case record and ensures the information is reflected in the paper case file;
• releases information and records to the attorney ad litem and guardian ad litem related to the APS case, and the CPS case (AOC), except:
• the name and other identifying information about the reporter of abuse, neglect or exploitation; and
• the AIDS/HIV-positive status of the proposed ward; and
• documents contacts with the attorney ad litem or guardian ad litem in the GOLD case record.

Discussion and Relevant Information. Before the hearing, an attorney ad litem is appointed to represent the legal position of the proposed ward in the guardianship proceeding. The attorney ad litem is required to interview the proposed ward before the hearing. To the extent possible, he or she explains the law and the facts of the case to the proposed ward. He or she also reviews the guardianship application and records or certificates of current medical, psychological, and intellectual examinations. If the ward clearly opposes the guardianship, the attorney ad litem must oppose the guardianship and defend against it. If the attorney ad litem is unfamiliar with DADS, the GS explains the role of DADS in relation to the proposed ward. If an aging-out child is currently in CPS conservatorship, CPS may inform the attorney ad litem of the AIDS/HIV-positive status of the proposed ward.

A guardian ad litem may be appointed to represent or advocate for the best interests of the proposed ward in a manner that will enable the court to determine what action will be in the best interest of the proposed ward. The guardian ad litem is entitled to all information and records related to the guardianship case if the client is aging out of CPS conservatorship, except:

• the name and other identifying information about the reporter of abuse, neglect or exploitation; and
• the AIDS/HIV-positive status of the ward.

If an aging-out child is currently in CPS conservatorship, CPS may inform the guardian ad litem of the AIDS/HIV-positive status of the child.

References:
Section 6520, Proposed Wards Who Have AIDS or are HIV-Positive
Probate Code §§645(a), 645(c)

5610  Appearance of Proposed Ward at Hearing

Policy: The GS shall arrange for the proposed ward to be present for the guardianship hearing, unless the proposed ward's appearance at the hearing is waived.

Required Procedures – The GS:

• makes arrangements for the proposed ward to be transported to the hearing when DADS is applying for guardianship of an individual;
• confirms with the attorney representing DADS prior to the hearing whether or not the proposed ward's appearance is waived; and
• documents consultations with the attorney, the supervisor or any other entity in the GOLD case record regarding the proposed ward’s appearance at the hearing.

Discussion and Relevant Information. The Probate Code requires the proposed ward to be present at the guardianship hearing, unless the court determines a personal appearance is not necessary. If the proposed ward's condition makes it extremely difficult for him or her to appear in court, the GS consults with the attorney representing DADS who then consults with the attorney ad litem. The attorney ad litem, the guardian ad litem, or the attorney representing DADS, obtains approval for the proposed ward to not be present.

The APS caseworker will attend the guardianship hearing without a subpoena upon provision of adequate notice by the applicant in a pending guardianship matter.

References:
Probate Code §685(a)

5620  Oath of Guardian

Policy: The GS shall file the Oath of Guardian within Probate Code requirements.

Required Procedures – The GS:

• signs and files the Oath of Permanent Guardian, Form 5067, within 20 calendar days of the date of the order granting guardianship to DADS;
• signs and files the Oath of Permanent Guardian, Form 5067, on the ward's 18th birthday or within five calendar days of the birthday, when the proposed ward is an AOC and DADS is appointed guardian prior to their 18th birthday; and
• attaches a file-stamped copy of the oath to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. The guardianship is filed in the name of DADS (Human Resources Code §161.105 and Probate Code §700). The GS signs the oath of guardian as a representative for DADS.

After the order has been signed and the oath taken before the clerk, the letters of guardianship will be issued naming DADS as the guardian and stating the expiration date. If the proposed ward is an AOC and the hearing is held before the child's 18th birthday, the judge's order should state the guardianship begins on the proposed ward's 18th birthday and specify the date. When the AOC turns 18, it is necessary to obtain letters of guardianship from the court. The letters often are furnished after the hearing. The guardianship starts on and is not effective until "qualification" of the guardian. A guardian without bond (like DADS) qualifies by filing the oath after the guardianship order. The date of filing the oath is the date of qualification. The evidence of qualification is the letters of guardianship.

References:
Human Resources Code §161.105
Probate Code §§700 and 701
Oath of Permanent Guardian, Form 5067

5630  Letters of Guardianship

Policy: The GS shall review the Letters of Guardianship for accuracy, arrange for correction of errors, and ensure the letters are renewed annually and remain current.

Required Procedures – The GS:

• works with the court clerk to resolve problems or inaccuracies such as DADS not named as guardian, incorrect date or type of guardianship, etc.;
• consults with the attorney if the court clerk is unable to correct the problem, the problem persists, or if it appears the problem arises from the guardianship order rather than the letters;
• consults with the attorney if the court does not approve the annual accounting and the annual report or the court clerk does not renew the letters of guardianship;
• notifies the supervisor when letters of guardianship are not renewed and follows supervisory instructions;
• documents consultations and actions, including attempts to work with the court clerk to obtain correct and renewed letters of guardianship, in the GOLD case record;
• places a copy of the case narrative detailing his or her efforts behind the incorrect letters of guardianship as proof of attempts to correct the problem in the paper case file; and
• attaches the letters of guardianship to the GOLD case record, or in the event of incorrect letters of guardianship, attaches the incorrect letters and pertinent case narrative, and places the hard copy in the paper case record.

Discussion and Relevant Information. The letters of guardianship automatically expire one year and four months after issuance unless renewed by the court (Probate Code §659). The clerk of court renews the letters every year, after the court approves the annual accounting and the annual report of the guardian of the person. A renewal of letters of guardianship reverts to the date the original letters were issued. DADS jeopardizes its authority to act as guardian if the letters expire. Delinquent reports and accountings adversely affect administration of the guardianship.

References:
Probate Code §659

5710  Application to Modify Existing Guardianship or Restore Capacity

Policy: The GS shall file an application to modify an existing guardianship or to restore capacity when the ward's circumstances or condition change so as to warrant either partial or total restoration of the ward's capacity subject to the court order.

Required Procedures – The GS:

• considers evidence for modifying the guardianship or restoring the ward's capacity;
• arranges for a new CME upon belief that the ward's capacity may be restored;
• prepares and files an application seeking to modify the guardianship or to restore a ward's capacity after receiving verbal approval from the supervisor and consulting with the regional guardianship attorney, as directed by the supervisor;
• documents consultations and actions in GOLD; and
• attaches the new CME and a file-stamped copy of the application and the signed order approving the application to the GOLD case record and places the hard copies in the paper case file.

Required Procedures – The supervisor:

• ensures active guardianship cases are reviewed annually to determine if capacity restoration should be sought; and
• provides consultation to the GS and approves filing an application for restoration of capacity when warranted.

Discussion and Relevant Information. With the exception of a person who has an interest adverse to a proposed ward or incapacitated person, Probate Code §642(a) allows any person, including a ward, to apply to the court to modify an existing guardianship or to completely restore a ward's capacity. Modification of an existing guardianship or restoration of capacity may be appropriate if the ward matures through education and is now able to perform tasks he or she was unable to perform previously (Probate Code §694A). A ward may initiate the process by sending an informal letter to the court. All other interested parties must file an application.

In some cases, a court may order an application for restoration may not be filed for up to one year from the appointment of a guardian or successor guardian without special leave of the court.

References:
Probate Code §§642(a), 693(e), 694A and 694B through 694I

5720  Initial Inventory, Appraisement and List of Claims

Policy: The GS shall prepare an initial inventory, appraisement and list of claims and mail or deliver it to the county clerk no later than 30 calendar days from the date of qualification of DADS as guardian of the estate.

Required Procedures – Permanent Guardianship. The GS:

• ensures a complete physical inventory is performed of the ward's personal and real property within 30 calendar days from the date of qualification;
• prepares the Initial Inventory and coordinates with the assigned guardianship accountant to ensure all necessary contents are accurate prior to submission to the supervisor and regional guardianship attorney;
• enlists assistance from the guardianship accountant as needed on final form and accuracy and then submits the initial inventory to the supervisor and regional guardianship attorney for review including:
  • the Initial Inventory of the Estate and List of Claims, Form 5038, which includes any property owned and any existing claims owed to the ward;
  • a verification (affidavit) signed by the GS swearing the inventory and list of claims are true and complete; and
  • the Order Approving the Initial Inventory of the Estate and List of Claims, Form 5038;
• mails or hand-delivers an initial inventory to the county clerk once it has been approved by the regional guardianship attorney and obtains a file-stamped copy (Probate Code §729); and
• attaches a file-stamped copy of the initial inventory and signed order approving the initial inventory to the GOLD case record and places the hard copy in the paper case file.

Temporary Guardianship

• files an initial inventory in a temporary guardianship of the estate if the court so orders; and
• attaches a file-stamped copy of the initial inventory and signed order approving the initial inventory to the GOLD case record and places the hard copy in the paper case file.

Successor Guardianship

• prepares and files an initial inventory no later than the 30th calendar day from the date of qualification when DADS is appointed as successor guardian (Probate Code §765); and
• attaches a file-stamped copy of the initial inventory and signed order approving the initial inventory to the GOLD case record and places the hard copy in the paper case file.

Required Procedures – The guardianship supervisor:

• reviews the initial inventory for completeness and accuracy.

Discussion and Relevant Information. It is the primary responsibility of the GS to ensure the initial inventory forms are factually accurate and complete. If the GA (or any other person) assisted with the form preparation, the sole responsibility for the accuracy of the forms still rests with the GS. Failure to submit an initial inventory is grounds for removing a guardian of the estate.

References:
Section 5200, Completion of Legal Forms
Section 5220, Legal Review of Guardianship Forms
Section 5210, Signing Legal Forms
Probate Code §§ 729 and 765
Initial Inventory of the Estate and List of Claims, Form 5038

5730  Amended Inventory or Supplemental Inventory

Policy: The GS shall submit an Amended Inventory or a Supplemental Inventory in accordance with the Table 5000-3, Amended Inventory versus Supplemental Inventory.

Required Procedures – Permanent Guardianship. The GS:

• submits an Amended Inventory or a Supplemental Inventory, Form 5039, and/or a Supplemental List of Claims (if appropriate) to the supervisor and to the regional guardianship attorney prior to filing it;
• signs the verification (if applicable);
• files the approved documents with the county clerk upon approval of both the supervisor and the regional guardianship attorney; and
• attaches a file-stamped copy of the amended or supplemental inventory and signed order approving the inventory to the GOLD case record and places the hard copy in the paper case file.

Required Procedures – Permanent Guardianship. The guardianship supervisor:

• reviews the inventory-related legal documents for completeness and accuracy.

Table 5000-3, Amended Inventory versus Supplemental Inventory

Discussion and Relevant Information. The GS allows one week for review by the regional guardianship attorney, as required in Section 5220, Legal Review of Guardianship Forms. The Supplemental Inventory may consist of or include a List of Claims.

The GS requests, upon approval of the supervisor, the assistance of the GA with preparing the document as needed. However, the GS is responsible for reviewing the completed document for completeness and accuracy prior to signing the verification, if any.

References:
Section 5200, Completion of Legal Forms
Section 5220, Legal Review of Guardianship Forms
Section 5210, Signing Legal Forms
Supplemental Inventory and/or List of Claims, Form 5039

5740  Late Filing of Initial Inventory

Policy: The GS shall ensure the initial inventory is filed within 30 calendar days of the guardianship qualification date and shall later file a supplemental inventory if all the ward's assets were not known by the due date of the initial inventory.

Required Procedures – The GS:

• consults with his or her supervisor and the regional guardianship attorney if all of the ward's assets will not be known by the due date of the initial inventory;
• files the initial inventory on time and later files a supplemental inventory in accordance with Probate Code §§734 and 735 (Section 5730, Amended Inventory or Supplemental Inventory);
• consults with the regional guardianship attorney regarding the insertion of a statement in the initial inventory advising the court that all of the ward's assets are not known and a supplemental inventory will be filed at a later date;
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the initial inventory and supplemental inventory and signed order approving the inventory to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Probate Code §729 requires the initial inventory to be filed by the 30th calendar day after appointment as guardian of the estate, unless the court grants an extension. According to Probate Code §761(a) (2), filing the initial inventory late without court approval can result in the removal of the guardian. In deciding whether to file a motion requesting an extension or to file the initial inventory on time and file an amended inventory later, the GS may consider the court's known preference. If not known, the GS, supervisor, and regional guardianship attorney decide how to proceed.

References:
Section 5730, Amended Inventory or Supplemental Inventory
Probate Code §§729, 734, 735 and 761(a) (2)
Supplemental Inventory and/or List of Claims, Form 5039

5810  Monthly Allowance

Policy: The GS shall obtain and include pertinent information about the monthly allowance in the Application for Permanent Guardianship.

Required Procedures – The GS:

• consults with the supervisor, and the regional guardianship attorney as needed, when preparing the monthly allowance portion of the Application for Appointment of a Permanent Guardian of Person and Estate, Form 5143;
• estimates the amount of an expense category, (e.g. medical expenses, etc.) if the actual amounts are unknown and includes an appropriate cushion amount not to exceed $500 per month to be spent only if necessary and if funds are available;
• includes the premium for burial policy in the monthly allowance if applicable;
• prepares and files an Application to Set Monthly Allowance, Form 5122, no later than the 30th calendar day of qualification or the date specified by the court, whichever is later if there was not sufficient information at the time of guardianship hearing (Probate Code §776(a-1);
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the application and signed order approving the monthly allowance to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Temporary or Permanent Guardianship of the Person Only – When DADS is appointed as temporary guardian of the person and/or estate or permanent guardian of the person only, the GS does not include language addressing the monthly allowance as found in the Application for Appointment of a Permanent Guardian of Person and Estate or file an Application to Set Monthly Allowance, unless ordered to do so by the court. In a temporary guardianship of the estate, an inventory is not required but a court may order one.

The GS, requests, upon approval of the supervisor, the assistance of the GA with the development and preparation of the monthly allowance as needed. An appropriate cushion amount is relative to the size of the estate and should not exceed $500 without authorization from the guardianship supervisor.

References:
Probate Code §776(a-1)
Application for Appointment of a Permanent Guardian of a Person and Estate, Form 5143
Application to Set Monthly Allowance, Form 5122

5811  Expenditure of Funds Other Than Monthly Allowance

Policy: The GS shall request court approval for expenditures of funds in excess of those previously approved in the monthly allowance.

Required Procedures – The GS:

• consults with the supervisor and obtains supervisory approval to expend funds not previously addressed (or which exceed the limits allowed by the monthly allowance) in the order approving monthly allowance;
• ensures pre-approval is obtained from the court prior to purchasing a burial contract, policy, or burial space;
• may spend up to $500 without prior court approval upon authorization of the supervisor;
• prepares an Application for Authority to Expend Funds, Form 5102, and submits it to the supervisor for his or her review;
• submits the application to the regional guardianship attorney for his or her review and signature;
• files the application with the court unless the regional guardianship attorney prefers to do so;
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the application and the signed order authorizing the expenditure of funds to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Unanticipated needs may arise requiring the GS to spend estate funds not previously pre-approved by the court. In such circumstances, the GS seeks court approval before expending the funds as much as possible. If the GS is unsure whether to file a revised Application to Set Monthly Allowance or an Application for Authority to Expend Funds in any given situation, he or she asks his or her supervisor and, as needed, the regional guardianship attorney.

The GA may, upon request, assist in the preparation of the application to expend funds. However, the GS has the sole responsibility to review the application for completeness and accuracy.

References:
Probate Code §776(b) (1)
Application for Authority to Expend Funds, Form 5102

5812  Court Approval Not Obtained Prior to Expenditure

Policy: The GS shall file an application for the court to ratify an expenditure if court approval was not obtained prior to the expenditure of funds not covered in the monthly allowance.

Required Procedures – The GS:

• consults with the regional guardianship attorney regarding the need to file an application to ratify expenditure of funds;
• prepares the Application to Ratify Expenditure of Funds, Form 5104, and submits it to the supervisor for review and to the regional guardianship attorney for review and signature;
• files the application with the court;
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the application and the signed order ratifying the expenditure of funds to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Probate Code §776(b) states, "When a guardian has in good faith expended funds from the income and corpus of the estate of the ward for support and maintenance of the ward and the expenditures exceed the monthly allowance authorized by the court, the guardian shall file a motion with the court requesting approval of the expenditures. The court may approve the excess expenditures if: (1) the expenditures were made when it was not convenient or possible for the guardian to first secure approval; (2) the proof is clear and convincing that the expenditures were reasonable and proper; (3) the court would have granted authority in advance to make the expenditures; and (4) the ward receives the benefit of the funds." In the event the court refuses to ratify the expenditure, it is crucial a payment not be made for items or services which DADS is prevented from paying (such as funeral expenses).

References:
Probate Code §776(b)
Application to Ratify Expenditure of Funds, Form 5104

5820  Sale of Real Property – General Information.

Timely sale of real property, when necessary, is an essential element of proper estate administration toward meeting the estate's financial obligations. The Probate Code allows the sale of real property under the following conditions (Probate Code §820):

• to pay expenses of administration, allowances, and claims against the ward or the ward's estate;
• to pay funeral expenses of the ward and expenses of the ward's last illness, if the guardianship is kept open after the death of the ward;
• to make up the deficiency when the income of the ward's estate, and the proceeds of previous sales, are insufficient to pay for the education and maintenance of the ward or to pay debts against the estate;
• to dispose of property of the ward's estate consisting in whole or in part of an undivided interest in real estate when it is deemed in the best interests of the estate to sell the interest; or
• to dispose of real estate of a ward, any part of which is nonproductive or does not produce sufficient revenue to make a fair return on the value of the real estate, when:
• the improvement of the real estate with a view to making it productive is not deemed advantageous or advisable;
• it appears the sale of the real estate and the investment of the money derived from the sale of the real estate would be in the best interests of the estate; or
• attempting to conserve the estate of a ward by selling mineral interests or royalties on minerals in place or owned by the ward.

Although the Probate Code mentions the sale of property after the death of the ward as stated above, there is case law in which the guardian may not sell property after the death of the ward. If there may be an objection to the sale by potential heirs or beneficiaries under a will or an interested person, or it is likely an executor or administrator will be appointed, it may not be prudent for the guardian to pursue the sale. The GS must consult the supervisor, the regional guardianship attorney, and seek court direction when considering a sale of property after the death of the ward.

All sales of ward's property require pre-approval by the court. All proceeds from sales are entered into the GOLD case record.

5821  Application for Sale of Real Property

Policy: The GS shall obtain supervisory approval and court approval when DADS as guardian of estate decides to sell real property.

Required Procedures – The GS:

• consults with the supervisor and, as needed, with the regional guardianship attorney, before proceeding with the sale of the real property;
• prepares and signs the Application for Sale of Real Property, Form 5096, upon receipt of approval from the supervisor, to sell the real property;
• submits the application to the supervisor and the regional guardianship attorney for review;
• files the application with the court after it has been approved by the regional guardianship attorney;
• requests the clerk to issue citation to the parties listed in the application;
• if the court requires a hearing, coordinates with the regional guardianship attorney to obtain a hearing on the application;
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the application to the GOLD case record and places the hard copy in the paper case file.

Required Procedures – The supervisor:

• provides consultation to the GS on the sale of the real property and approves the sale of the real property.

Discussion and Relevant Information. Following are steps in the sale of real property by the guardian of the estate:

1. The guardian of the estate must obtain court approval before a sale of real property can occur (Probate Code § 811). The guardian should not enter into a listing agreement or a sales contract until the court has signed the order approving the sale.
2. The guardian may apply to sell the ward's real property in order to pay expenses of the administration, allowances and claims against the ward, funeral expenses, expenses of the last illness, to augment income, to dispose of nonproductive real property or conserve the ward's estate by selling mineral interests or royalties (Probate Code § 820).
3. The guardian must apply for authority to sell before consummating a sale. The application must identify and describe the property to be sold, tell the court why the sale is necessary and explain the terms of the sale. The application must be verified (Probate Code §§ 811 through 820).
4. The clerk's office will issue citation by posting, describing the property to be sold. Upon the expiration of 10 days, the court will consider the application and enter an order authorizing the sale. A hearing must be scheduled to obtain court approval if there is an objection to the sale (Probate Code §§ 822 through 824). Most courts require a hearing even if there is no objection. The regional guardianship attorney will check local practice.
5. The order approving the sale must identify and describe the property clearly, state the means of sale, such as by public or private sale, and the terms of sale (Probate Code §825). DADS is exempt from the bond requirement under Human Resources Code §161.107(a).
6. After the court approves the order authorizing the sale, the guardian locates a buyer and negotiates an earnest money contract in compliance with the court order. Special provisions should be considered, such as the property is sold "as is", the conveyance is by special warranty deed, the contract is subject to court approval, and the buyer cannot require special performance of the real estate contract if the court fails to confirm the sale. The special warranty deed protects the guardian by limiting the warranty to the period of the guardian's administration and not prior, when the guardian had no control or knowledge of the property. The GS consults with the regional guardianship attorney regarding these contract provisions and deed requirements.
7. Since the court will not normally authorize a sale of real property for less than fair market value, an appraisal may be necessary to establish fair market value. This may be a formal appraisal conducted by a certified appraiser or it may be an informal letter estimating the value of the property by a disinterested real estate broker. Some courts will accept the appraisal from third party financing (e.g., conventional, FHA, VA, etc.). The regional guardianship attorney consults with the court regarding what is acceptable for appraisal purposes.
8. Not later than 30 days after the sale, the guardian must file the report of sale with the court. The guardian files a sworn statement setting forth the date of the order of sale, the description of the property sold, the time and date of the sale, the name of the purchaser, the amount of sales proceeds, whether the sale was public or private, and whether the purchaser is ready to comply with the order of sale. Copies of the earnest money contract, the appraisal or other evidence of fair market value, and the preliminary settlement statement are attached to the report of sale. The court will consider the report and enter the decree approving and confirming the sale after the report has been on file for five days (Probate Code §§832 through 834).
9. The Decree Confirming the Sale authorizes the guardian to convey the property to the purchaser by special warranty deed and execute other documents necessary to complete the sale. If the sale is made partly on credit, a vendor's lien is retained in the deed and a deed of trust executed and delivered (Probate Code §§835 through 836). The guardian should not go to closing until the Decree Confirming Sale (also known as Confirmation of Sale) has been obtained.
10. Conveyance of the property without court approval is void.
11. DADS sells for cash or third-party credit (no owner finance or contract for deed).

References:
Probate Code §§811-825, 832-836
Human Resources Code §161.107(a)
Application for Sale of Real Property, Form 5096

5822  Completion of Sale of Real Property

Policy: The GS shall perform the procedures specified below when completing the sale of real property.

Required Procedures – The GS:

• determines the value of the property (tax value, appraisal value, etc.);
• seeks the services of a professional real estate broker licensed by the Texas Real Estate Commission if the property is to be sold by private sale unless the value is less than $10,000 or if the supervisor directs the use of a professional real estate broker regardless of the value;
• asks permission from the court to sell the property by private sale without use of a realtor if the value is under $10,000 and if the supervisor concurs;
• submits the Report to the Court on the Sale of Real Property, Form 5098, signed by the GS, and Decree Confirming Sale of Real Property, Form 5099, to the judge for his or her signature once the property is sold;
• furnishes the GA with the tax value of real property for entry into the GOLD case record, or upon written email notification to the GA and the guardianship supervisor, assumes the responsibility to enter it into GOLD; and
• attaches a file-stamped copy of the report on sale, the order approving the sale, and the decree confirming the sale to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Timely sale of property including real property is an essential element of proper estate administration toward meeting necessary financial obligations of the estate. Proceeds of the sale of property must be used first to pay any outstanding liens against the property, such as mortgages, tax liens, or home equity loans (Probate Code §808). Money remaining after all the liens have been paid is used in the order set out in Probate Code §805.

The value of real property is entered into the GOLD case record using the tax value. This ensures consistency in reporting for statistical purposes. However, the appraised value should be documented in a narrative.

The GS requests, upon approval of the appropriate supervisor, assistance from another DADS employee (e.g., AA, GA, another GS, etc.) in locating a realtor or obtaining bids and other information related to the sale of a ward's property, as needed. The AA may assist the GS in attaching the legal documents to the GOLD record as authorized by the supervisor. The court may allow the property to be sold below the tax value or the appraised value. That value is captured in the financial portion of the GOLD case record at the time of the sale. The GA enters the values of property into the GOLD case record. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing via email he or she assumes the responsibility. If the GS chooses to enter the values of the property into GOLD, he or she notifies the GA when it is entered.

References:
Probate Code §§805, 808, and 825
Report to the Court on the Sale of Real Property, Form 5098
Decree Confirming Sale of Real Property, Form 5099

5823  Abandonment of Worthless Real Property

Policy: The GS shall actively pursue the feasibility of abandoning worthless real property of the estate.

Required Procedures – The GS:

• consults with HHSC Medicaid Eligibility staff to determine the effects of abandoning worthless property on the ward's eligibility for Medicaid;
• consults with the supervisor, and as needed with the regional guardianship attorney;
• prepares the Application for Abandonment of Real Property, Form 5128, when appropriate; and
• documents all consultations and attaches applications and any other related documents to the GOLD case record.

Required Procedures – The supervisor:

• provides consultation to the GS as needed as to the disposition of worthless real property; and
• approves or denies the abandonment of the property.

Discussion and Relevant Information. Probate Code §774(a)(6) allows the guardian of the estate to abandon worthless personal or real property when the guardian believes it to be in the best interest of the estate. Examples of situations involving worthless property include but are not limited to the following:

• the GS is unable to sell the property and the ward's estate cannot afford upkeep;
• money owed on the property exceeds the value of the property (for example, liens, taxes, bills, etc.); or
• limited personal possessions remain after a ward who has no heirs dies.

Examples of property which may be abandoned include worthless or burdensome land, houses, motor vehicles, household contents and personal possessions.

Abandoned real property may be foreclosed upon by a secured party, trustee, or mortgagee without further orders of the court.

References:
Probate Code §774(a)(6)
Application for Abandonment of Real Property, Form 5128

5830  Sale of Personal Property – General Information.

As with the sale of real property of the estate, selling personal property is often a necessary function when the guardian must meet financial obligations of the estate or other circumstances require liquidation of certain property. The Probate Code allows for the sale of personal property under the following conditions:

• if the personal property is liable to perish, waste, or deteriorate in value if kept, in which case Probate Code §812 requires the sale of the property;
• if it would be in the best interest of the ward or the ward's estate to pay expenses of the care, maintenance, and education of the ward or the ward's dependents (Probate Code §813);
• to pay expenses of administration, allowances, and claims against the ward or the ward's estate (Probate Code §813); or
• to pay funeral expenses of the ward and expenses of the ward's last illness, if the guardianship is kept open after the death of the ward (Probate Code §813).

Although the Probate Code mentions the sale of property after the death of the ward as stated above, there is case law in which the guardian may not sell property after the death of the ward. If there may be an objection to the sale by potential heirs or beneficiaries under a will or an interested person, or it is likely an executor or administrator will be appointed, it may not be prudent for the guardian to pursue the sale. The GS must consult the supervisor, the regional guardianship attorney, and seek court direction when considering a sale of property after the death of the ward.

All sales of ward's property require pre-approval by the court. All proceeds from sales are entered into the GOLD case record.

Items of nominal value can be delivered to an heir or family member without their being required to purchase them pursuant to Section 5838, Sale of Items Designated for Heirs in Wills.

5831  Purchase of Items From Ward's Estate

Policy: DADS guardianship employees and their immediate family members are prohibited from knowingly purchasing any items or property from the estate of a DADS ward.

Required Procedures – A DADS guardianship employee:

• notifies his or her supervisor within 48 hours upon becoming aware another guardianship employee, or an immediate family member of a guardianship employee, purchased an item or other property from a ward's estate;
• notifies the ROM or the SD within 48 hours upon becoming aware of a purchase made by the guardianship supervisor; and
• notifies the supervisor, ROM, or SD, as appropriate, within 48 hours of becoming aware an individual unrelated to the guardianship staff member made a purchase for the benefit of a guardianship staff member.

Required Procedures – The GS:

• follows state office program management instructions regarding actions to take.

Required Procedures – The supervisor:

• ensures the ROM or SD is notified of the purchase of the items or property and consults with the regional guardianship attorney regarding court notification, upon receiving information another DADS guardianship employee, a family member of another DADS guardianship employee, or someone on his or her behalf has purchased an item or property in violation of this policy; and
• follows the instructions of the ROM or SD regarding actions to be taken.

Discussion and Relevant Information. For purposes of this policy, "DADS guardianship employee" includes: the administrative assistant (AA), the guardianship accountant (GA), the guardianship specialist (GS) and the guardianship supervisor. It is the responsibility of the DADS employee to ensure no one (family member, friend or acquaintance) purchases an item or property on behalf of the DADS guardianship employee.

References:
Section 5832, Application for Sale of Personal Property
Section 5833, Completion of Sale of Personal Property
Probate Code §§812 and 813

5832  Application for Sale of Personal Property

Policy: The GS shall obtain supervisory approval and court approval when DADS decides to sell the ward's personal property.

Required Procedures – The GS:

• consults with the supervisor, and as needed with the regional guardianship attorney, before proceeding with the sale of the personal property;
• researches property information, and establishes the current value of the property to be sold and submits information to supervisor for review and approval;
• prepares and signs the Application for Sale of Property, Form 5094, to include the proposed method of sale for approval from the court, upon receipt of approval to sell the personal property from the supervisor;
• submits the application to the supervisor and the regional guardianship attorney for review;
• files the application with the court after it has been approved by the regional guardianship attorney;
• requests the clerk to issue citation to the parties listed in the application;
• ensures the estimated, appraised or bid value of personal property to be sold is entered into the GOLD case record;
• ensures funds received for the sale are entered into the GOLD case record;
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the application and the order approving sale to the GOLD case record and places the hard copy in the paper case file.

Required Procedures – The supervisor:

• provides consultation to the GS on the sale of the personal property; and
• approves the sale of the personal property.

Discussion and Relevant Information. As with real property, circumstances may deem it advisable or necessary for the GS to sell personal property of the estate. Following is information and steps taken in the sale of personal property by the guardian of the estate:

1. The sale of personal property of the ward may not be made without an order of the court authorizing the sale. There are two reasons for seeking court authority to sell personal property (e.g., household furnishings and personal effects, etc.) of the ward:
• Probate Code § 812(a) provides the guardian of the estate, after approval of the inventory and appraisement, shall promptly apply for an order of the court to sell at public auction or private sale, all of the estate liable to perish, waste or deteriorate in value or which will be an expense or disadvantage to the estate if kept.
• The court may order the sale of any personal property of the estate not required to be sold under Section 812 if the court finds the sale of the property would be in the best interests of the ward or the ward's estate in order to pay expenses related to the care, maintenance, and education of the ward or the ward's dependent's, expenses of administration, allowances, or claims against the ward or the ward's estate, and funeral expenses.
2. Probate Code §813 requires applications and orders for the sale of personal property must conform to the requirements set forth for applications and orders for the sale of real property.
3. The guardian must apply for authority to sell the personal property before he or she consummates a sale. The application must identify and describe the personal property to be sold and state why the sale is necessary and explain the terms of the sale. The application must be verified (Probate Code §§811 through 820). The guardian should not enter into a sales contract, a contract for auction or agreement to hire an auctioneer, sign a bill of sale, or in any way sell the property until an order approving the sale has been signed and obtained from the court.
4. The clerk's office will issue citation by posting, which will describe the property to be sold. All sales of personal property at public auction shall be made after notice has been issued and posted (Probate Code §815). Upon expiration of 10 days, the court considers the application and may enter an order authorizing the sale. A hearing must be scheduled to obtain court approval if there is an objection to the sale (Probate Code §§822 through 824). The regional guardianship attorney will check local practice on whether a hearing is required.
5. The order approving the sale must clearly identify and describe the personal property, state the means of sale, such as by public auction or private sale, the necessity and the purpose of the sale, and the terms of the sale (Probate Code §824). DADS is exempt from the bond requirement under Human Resources Code §161.107(a).
6. After the court approves the order authorizing the sale, the guardian must locate a purchaser(s) and negotiate a contract in compliance with the court order. At that point, the guardian may enter a sales contract or contract for auction or agreement to hire an auctioneer.
7. Since the court will not normally authorize a sale of personal property for less than fair market value, an appraisal may be necessary to establish fair market value. This may be a formal appraisal conducted by a certified appraiser or it may be an informal letter estimating the value of the personal property by a disinterested expert. The court may also consider values given in the inventory or appraisals filed with the inventory or subsequently filed with the court.
8. No later than 30 days after the sale, the guardian must file the report of the sale of personal property with the court. The guardian must file a sworn statement setting forth the date of the order of the sale, the description of the property sold, the time and date of the sale, the name of the purchaser(s), the amount of sales proceeds, whether the sale was public or private, and whether the purchaser is ready to comply with the order of sale. The court will consider the report and enter the decree approving and confirming the sale after the report has been on file for five days (Probate Code §§813, 818 and 832 through 834).
9. The Decree Confirming the Sale conveys the personal property to the purchaser(s). There is no requirement of a conveyance of personal property. However, upon request, the guardian may issue a bill of sale without warranty to the purchaser as evidence of title. The expense of the bill of sale is to be born by the purchaser. At this point, the guardian may give a bill of sale.
10. It is important for the guardian to follow the statutory framework for the sale of personal property because any sale of a ward's personal property without court order is void.
11. DADS will only sell for cash or third-party credit (no owner finance).

The GS requests, as needed, assistance from another DADS employee (e.g., AA, GA, another GS, etc.) in locating a salesman, listing items in the newspaper, or obtaining bids and other information related to the sale of a ward's property, upon approval of the supervisor. The AA may assist the GS in attaching the legal documents to the GOLD record as authorized by the supervisor.

References:
Probate Code §§811-820, 822-824, and 832-834
Human Resources Code §161.107(a)
Application for Sale of Property, Form 5094

5833  Completion of Sale of Personal Property

Policy: The GS shall complete the sale of personal property in a timely, conscientious manner.

Required Procedures – The GS:

• determines or estimates the value of the property as appropriate (e.g., NADA Blue Book for motor vehicles, professional appraiser for household goods and other valuables, etc.);
• seeks the services of a licensed estate salesman, auctioneer, etc. as appropriate, depending on the specific property and method of sale, and verifies licenses, checks references, and checks with the Better Business Bureau, as applicable;
• enters the estimated or appraised value of property into the GOLD case record upon written email notification to the GA and guardianship supervisor, assuming the responsibility, or furnishes the value to the GA for entry;
• consults with the supervisor on other appropriate methods of sale (e.g., listing items in newspaper, garage sale, etc.);
• submits the Report to the Court on the Sale of Property, Form 5097 (signed by the GS), and Decree Confirming Sale of Personal Property, Form 5100, to the court for the judge's signature once the property is sold;
• places a copy of the completed sales contract, if applicable, in the paper case file;
• documents consultations and actions taken when selling the property in the GOLD case record; and
• attaches a file-stamped copy of the report on sale and the decree confirming sale to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Caution should be used when conducting a garage sale to ensure the ward's best interests are protected. It is preferable to use an estate salesman or auctioneer if available and appropriate. If using an estate salesman or general auctioneer, the GS ensures the person is licensed in order to provide the maximum protection for the ward's estate. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing he or she assumes the responsibility. If the GS chooses to enter the values of the property into GOLD, he or she notifies the GA when it is entered.

References:
Section 5830, Sale of Personal Property
Section 5832, Application for Sale of Personal Property
Report to the Court on the Sale of Personal Property, Form 5097
Decree Confirming Sale of Personal Property, Form 5100

5834  Sale of Livestock

Policy: The GS shall ensure the sale of livestock conforms to the general requirements for sale of personal property as well as procedures outlined in this item.

Required Procedures – The GS:

• performs the tasks outlined in Section 5832, Application for Sale of Personal Property, and Section 5833, Completion of Sale of Personal Property;
• sells the livestock through an auction bonded by the Packers and Stockyards Administration (a branch of the USDA), when the court approves the sale; and
• attaches a file-stamped copy of the application and the order approving sale to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Application to sell livestock is made in accordance with Probate Code §814. Federal law requires all auctions to be bonded by the Packers and Stockyards Administration. Selecting the appropriate auction depends on the volume of livestock. In this context, livestock means animals raised for commercial purposes (e.g., horses, cattle, sheep, etc.). If there are questions about whether an animal or animals meet the definition of livestock, consult with state office management for clarification. Assistance in selecting an auction may be obtained by contacting:

References:
Section 5830, Sale of Personal Property
Section 5832, Application for Sale of Personal Property
Section 5833, Completion of Sale of Personal Property
Probate Code §814

5835  Sale of Motor Vehicles

Policy: The GS shall ensure the sale of a motor vehicle conforms to the general requirements for sale of personal property as well as procedures outlined in this item.

Required Procedures – The GS:

• performs the tasks outlined in Section 5832, Application for Sale of Personal Property, and Section 5833, Completion of Sale of Personal Property;
• checks the National Automobile Dealer Association (NADA) or "Blue Book" to determine the vehicle's approximate value before selling it and provides it to the GA for entry into the GOLD case record unless upon written email notification to the GA and guardianship supervisor, the GS assumes this responsibility;
• determines if the vehicle is in need of repairs and if so:
• obtains two estimates (if applicable) for the repairs from mechanics; and
• subtracts the cost of the repairs from the Blue Book price;
• attempts to locate an auto trader or other appropriate private advertiser to sell the vehicle once the value has been established;
• advertises the vehicle in the newspaper using the funds of the estate to pay the fees if an auto trader cannot be located to sell the vehicle or uses appropriate means to sell the vehicle;
• consults with the guardianship supervisor prior to selling any motor vehicle below market or blue book value;
• documents all consultations and actions taken in the GOLD case record; and
• attaches a file-stamped copy of the application, the signed order approving sale, the report of sale, and the signed degree confirming sale to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. The GS should make every effort to sell the motor vehicle for the Blue Book or comparable value. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing he or she assumes the responsibility. If the GS chooses to enter the vehicle’s approximate value into GOLD, he or she notifies the GA when it is entered.

References:
Section 5830, Sale of Personal Property
Section 5832, Application for Sale of Personal Property
Section 5833, Completion of Sale of Personal Property
Section 4293, Motor Vehicles

5836  Sale of Household Contents and Valuables

Policy: The GS shall ensure the sale of household contents and valuables conforms to the general requirements for sale of personal property as well as procedures outlined in this item.

Required Procedures – The GS:

• performs the tasks outlined in Section 5832, Application for Sale of Personal Property, and Section 5833, Completion of Sale of Personal Property;
• consults an estate salesman about selling the household contents and/or other valuables;
• consults with the supervisor on other appropriate means of sale if the estate salesman is unwilling to sell the household contents or valuables (e.g., poor condition, little worth, etc.);
• enters the estimated or appraised value of the contents and valuables into the GOLD case record upon written email notification to the GA and guardianship supervisor assuming the responsibility, or furnishes the information to the GA for entry into the record;
• enters the appraised value for any specific items found to be valuable into the GOLD case record upon written email notification to the GA and guardianship supervisor, assuming the responsibility, or furnishes the information to the GA for entry and adjusts or ensures the initial estimated value is adjusted, if required;
• enters the funds received for sale of household contents and valuables upon written email notification to the GA and guardianship supervisor assuming the responsibility, or furnishes the information to the GA for entry into the GOLD case record;
• documents all consultations and actions taken in the GOLD case record; and
• attaches a file-stamped copy of the application, the signed order approving the sale, report of sale, and signed decree confirming sale to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Depending on factors such as the condition and volume of the goods or valuables, availability of salesmen or dealers to a specific area, etc., the methods of sale may vary. Regardless of the circumstances, the GS balances the financial return for the property sold in the best interest of the estate with effective use of available resources. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing he or she assumes the responsibility. If the GS chooses to enter the values of valuables or the funds received for sale of valuables into GOLD, he or she notifies the GA when it is entered.

References:
Section 5830, Sale of Personal Property
Section 5832, Application for Sale of Personal Property
Section 5833, Completion of Sale of Personal Property
Section 5836.1, Estate Sales

5836.1  Estate Sales

Policy: The GS shall ensure estate sales and sales of the ward's property are approved by the court, the supervisor or state office, are fully documented, and a contract obtained from any entity agreeing to conduct the sale.

Required Procedures – The GS:

• seeks the approval of the Guardianship Supervisor and the court before conducting estate and/or garage sales;
• seeks approval of the court through an application to sell personal property and other related legal pleadings (i.e., order approving sale, report of sale, and decree confirming sale);
• researches estate information, uses a variety of resources including the GS' own professional judgment and establishes the current value of estate items to be sold and submits information to supervisor for review and approval;
• pursues avenues of sale, such as auctions and consignment sales, rather than a garage sale;
• obtains or seeks three written bids from professionals willing to conduct an auction or sale and documents all efforts to obtain those bids;
• ensures a selected auctioneer is licensed with the Texas Department of Licensing and Regulation (TDLR);
• contracts in writing for sales of a ward's estate or property and ensures the following:
• the contract is prepared by or reviewed by the regional guardianship attorney prior to signing of the document; and
• any individual who is going to conduct a sale of a ward's estate or property, including operators of auctions, estate sales, consignment sales, and garage sales, executes a written agreement to conduct the sale;
• ensures records are kept on the proceeds for individual items sold in auctions, estate sales, consignment sales, and garage sales, to include:
• receipts for items sold;
• if the value of an item is less than $10, a list of individual items sold which includes the selling price may be compiled or accepted;
• inventory of items sold; and/or
• pictures of large items, antiques, jewelry and pictures of grouped items;
• obtains authorization from state office prior to sale of the ward's property if the entity conducting the sale is unwilling or unable to furnish receipts for items or is unwilling to furnish a compiled list of individual items when the selling price of those items is valued at less than $10 per item;
• does not sell items valued at more than $250 in a garage sale without a written authorization from the supervisor;
• does not add items to an estate sale after approval has been received from the court without approval of the court to do so;
• documents the following:
• all court approvals and supervisory consultations;
• consultations with the approvals and directions received from state office program management;
• discussions and agreements with individuals and representatives of the firms conducting the sale and those asked to bid on the prospective sale; and
• resources used to value goods and items (e.g., Blue Book value for vehicles, bids, etc.).
• enters the amount raised through the estate sale in the assets upon written email notification to the GA and guardianship supervisor, assuming the responsibility, or furnishes the information to the GA for entry into the GOLD case record;
• attaches pertinent estate sale records to the GOLD case record and places a hard copy in the paper case file; and
• enlists the assistance of the AA in entering information and attaching records as authorized by the supervisor.

Required Procedures – The guardianship supervisor:

• reviews the terms and conditions of the proposed sale(s), including review of all bids obtained;
• seeks approval of any proposal with the ROM or the SD or designee where the commission structure is in excess of 30%;
• receives approval from the ROM, the SD or designee prior to authorizing sale of a ward's property through a garage sale;
• consults with the ROM, or SD or designee, prior to the sale, if the individual conducting the sale is not willing or able to furnish receipts for items sold;
• can authorize the sale of items less than $100 in value without a receipt during a garage sale (after receiving authority from state office to conduct such sale) as long as the total estimated value of the estate does not exceed $2,500;
• ensures a complete inventory is obtained prior to the sale;
• ensures a copy of the inventory is attached to the GOLD case record; and
• documents all approvals, consultations and decisions in the GOLD case record.

Discussion and Relevant Information. As Guardian of the Estate, the GS is responsible for ensuring sales of the ward's property are handled in a professional and competent manner. It is imperative to receive court approval before items are sold by the program. If, after receiving court approval to conduct a sale, items of significant value are discovered, those items must be brought to the attention of the court prior to the sale. It is generally not appropriate to sell vehicles, property or items with a large value (more than $250) at a garage sale. If there is not a licensed auctioneer in the county who can conduct an estate sale, the GS should contact auctioneers in surrounding counties to see if they would be willing to conduct the sale. In valuing the items for sale, the GS must use a variety of resources to include:

• Internet searches for items and goods of like kind and value;
• reference books (e.g., books of valuable glass, dolls, etc.);
• discussions with collectors, antique dealers and other professionals;
• Blue Book value for vehicles and other resources available for valuing vehicles, boats, and motorcycles such as auto dealers, car auctions; and
• obtaining estimates from individuals in the business of buying or selling the particular types of items.

Although the GS may request and receive the assistance of other DADS guardianship staff (i.e., the GA, the AA, or another GS), it remains the primary responsibility of the GS to accomplish the tasks related to sale of a ward's property. The supervisor must ensure all sales are conducted in accordance with policy and statute in a legal, responsible and professional manner. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing he or she assumes the responsibility. If the GS enters the amount raised in the estate sale into GOLD, he or she notifies the GA when it is entered.

Garage sales create unique challenges, including being able to document sales of small items, the need for staff to move household goods and furnishings, the small amount of monies that may be made versus the time it takes staff to conduct the sale, etc. In some cases, the potential value after sale may be insufficient to make it worthwhile to conduct the sale. Decisions are made on a case-by-case basis regarding seeking the court's permission to sell or abandon property. If an individual or a business entity is hired to conduct the garage sale, a contract or written agreement must be signed by all parties. The contract or written agreement must be reviewed or drafted by the regional guardianship attorney. It is important to discuss sale related issues with the entity or individual conducting the sale such as whether or not they have liability insurance, who will be present during the sale, the method of record keeping, etc. The individual or entity conducting the sale must ensure adequate staff are on hand to protect the ward's property, to document the sales of items, and to handle the proceeds.

All other avenues of sale must be pursued prior to seeking state office approval to conduct a garage sale. State office will not approve a sale where the value of the estate is more than $2500 except in extraordinary circumstances.

The TDLR maintains records of claims and violations for those auctioneers licensed by the agency. Information can be obtained by contacting the TDLR. The address to obtain information on auctioneers is: www.license.state.tx.us/AUC/auction.htm.

References:
Section 5830, Sale of Personal Property – General Information

5837  Sale of Guns and Gun-Related Property

Policy: The GS shall ensure the sale of guns and gun-related property conforms to the general requirements for sale of personal property as well as procedures outlined in this item.

Required Procedures – The GS:

• performs the tasks outlined in Section 5832, Application for Sale of Personal Property, and Section 5833, Completion of Sale of Personal Property;
• ensures each gun is unloaded prior to storage or transport using an appropriate community resource to assist as available and necessary;
• consults with the supervisor as needed;
• ensures gun-related property is not stored in DADS offices under any circumstances;
• obtains permission from the supervisor, the ROM, or the SD, and the regional guardianship attorney to sell gun-related property;
• obtains permission from the court to sell gun-related property;
• ensures individuals storing, facilitating the sale of, or purchasing guns from the estate are licensed and reputable dealers in firearms; and
• follows these general guidelines for the liquidation of gun-related property to ensure:
• guns are not sold directly to an individual buyer;
• permission is immediately requested from the court to hire an appraiser to establish an accurate value for the guns;
• the appraiser will not sell or purchase guns directly from the ward's estate;
• the appraiser is consulted regarding the best way to sell the guns (e.g., auction, consignment, bids, etc.); and
• documents all consultations, permissions and actions in the GOLD case record.

Discussion and Relevant Information. Guns and ammunition considered to be secure in the ward's home may remain in the home until the GS can arrange for liquidation. However, guns and ammunition must not be stored together in the same location inside the home. Local law enforcement may be willing to store guns that are not secure in the ward's home. If law enforcement cannot provide this service, the GS seeks appropriate storage with:

• a local gun club that leases gun storage lockers; or
• a gun dealer/pawnshop that provides gun storage lockers on a commercial basis.

The GS arranges for a licensed dealer to transport the unloaded guns and ammunition as necessary to facilitate storage and/or liquidation. A licensed dealer must handle transport or shipping across state lines. If a licensed dealer is not available, the GS consults with the supervisor or ROM to make the determination on transport.

Special ammunition intended for antique guns poses no real danger. It is best, however, to sell the guns and ammunition as a unit. Ammunition determined to be of no real value by the appraiser may be disposed of as "worthless property" with permission from the court. Law enforcement will provide information on how to properly dispose of ammunition. Assistance from a licensed dealer or law enforcement should be sought in disposing of the ammunition.

References:
Section 3260, Ensuring Safety of a Ward with Access to Guns or Ammunition
Section 5830, Sale of Personal Property
Section 5832, Application for Sale of Personal Property
Section 5833, Completion of Sale of Personal Property

5838  Sale of Items Designated for Heirs in Wills

Policy: The GS shall ensure the sale of items designated for heirs in wills conforms to the general requirements for sale of personal property as well as procedures outlined in this item.

Required Procedures – The GS:

• performs the tasks outlined in Section 5832, Application for Sale of Personal Property, and Section 5833, Completion of Sale of Personal Property;
• reviews an existing will to determine specific items bequeathed to an heir and notifies the court;
• obtains the permission of the court to sell items designated for an heir in a will; and
• attaches a file-stamped copy of the application and signed order approving sale, report of sale and signed decree confirming sale to the GOLD case record and places a hard copy in the paper case file.

Discussion and Relevant Information. If the court does not give the GS permission to sell items designated for an heir in a will, the GS may wish to ask the judge for permission to deliver the item to the designee before the death of the ward. The GS may also request permission of the supervisor to deliver items of sentimental or nominal value to the family members and heirs rather than selling those items even if they are not mentioned specifically in the will. It is not a requirement for all such items to be sold. In those instances, the court is notified of the action at the time of the final accounting and asked to ratify the delivery of goods. The supervisor and the GS may wish to consult with the regional guardianship attorney prior to delivering the items to determine whether or not to seek court approval prior to abandoning the property (i.e., giving away) to the family member or heir.

References:
Section 5830, Sale of Personal Property
Section 5832, Application for Sale of Personal Property
Section 5833, Completion of Sale of Personal Property
Section 5836.1, Estate Sales

5839  Abandonment of Worthless Personal Property

Policy: The GS shall seek the permission of the court to abandon worthless personal property.

Required Procedures – The GS:

• consults with HHSC Medicaid Eligibility for the Elderly and People with Disabilities staff to determine the effects of abandoning worthless personal property on the ward's eligibility for Medicaid;
• consults with the supervisor, and as needed with the regional guardianship attorney;
• prepares the Application for Abandonment of Personal Property, Form 5127, if appropriate;
• documents changes in property value in the asset portion of the GOLD case record upon written email notification to the GA and guardianship supervisor, assuming the responsibility, or furnishes the information to the GA for entry;
• documents all consultations, decisions and actions in the GOLD case record; and
• enlists the assistance of the AA or GA in attaching a file-stamped copy of the application and the signed order approving abandonment to the GOLD case record.

Required Procedures – The supervisor:

• provides consultation to the GS as needed as to the disposition of the worthless property; and
• approves or denies the abandonment.

Discussion and Relevant Information. Probate Code §774(a) (6) allows the guardian of the estate to abandon worthless personal or real property when the guardian believes it to be in the best interest of the estate. A personal possession of low value left when a ward who has no heirs dies is an example of worthless personal property. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing he or she assumes the responsibility. If the GS chooses to enter changes in property value into GOLD, he or she notifies the GA when it is entered.

References:
Probate Code §774(a) (6)
Application for Abandonment of Personal Property, Form 5127

5840  Contracts of Sale

Policy: The GS shall ensure contracts of sale are executed properly and consistently when DADS arranges for the sale of property as guardian of estate.

Required Procedures – The GS:

• ensures listing agreements and contracts reflect the seller as "Estate of (name of ward), Department of Aging and Disability Services as guardian of the estate of (name of ward)";
• ensures listing agreements and contracts provide that DADS has no personal or individual liability and the contract is with the estate;
• ensures contracts indicate: "SALE IS SUBJECT TO COURT APPROVAL";
• submits an offer agreed upon by all parties to the supervisor for approval prior to execution of a contract;
• consults (or the guardianship supervisor may consult) with the regional guardianship attorney, especially with regard to sale of real estate, as circumstances require;
• signs the contract, once supervisory approval is obtained, accepting the final offer as "(name of GS), agent for the Texas Department of Aging and Disability Services, guardian of (name of ward)";
• submits contracts to the court for approval;
• requests the regional guardianship attorney to review deeds and closing papers;
• requests checks from title companies be made payable to "Estate of (name of ward), Department of Aging and Disability Services as guardian of the estate of (name of ward)";
• enters the information upon written email notification to the GA and guardianship supervisor, assuming the responsibility, or furnishes the information to the GA for entry in the GOLD case record if the contract generates income or revenue;
• documents consultations and actions in the GOLD case record; and
• attaches a copy of the contracts to the GOLD record and places the hard copy in the paper case file.

Discussion and Relevant Information. Selling a ward's property is done to ensure there are sufficient liquid assets to meet the needs of the ward. The GS and the guardianship supervisor make all reasonable efforts to ensure the property is sold for the best price possible. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing he or she assumes the responsibility. If the GS chooses to enter income or revenue from sales into GOLD, he or she notifies the GA when it is entered.

References: N/A

5850  Application to Set Investment Plan

Policy: The GS shall invest excess funds in program approved methods of investment and shall file an Application to Set Investment Plan when legally required or when such application is prudent and in the best interest of the ward's estate.

Required Procedures – The GS:

• consults with the guardianship supervisor and the regional guardianship attorney after the filing of the Inventory and List of Claims and prior to investment to determine if an application to set investment plan should be filed with the court or if investment of excess funds in program approved methods of investment alone is sufficient;
• considers the need to hire a financial planner or estate manager to assist in this determination;
• invests in program approved methods of investment or completes and files the Application to Set Investment Plan with the court within 180 calendar days after qualification of DADS as guardian of the estate when the ward has funds exceeding the amount needed for education, support, and maintenance of the ward (such as exceeding the amount approved in monthly allowance);
• considers the following when completing the Application to Set Investment Plan:
• whether invested funds need to be accessed for future education, support, and maintenance of the ward, such as Medicaid spend-down.
• whether investments may be staggered to allow access as needed (for example, combination of checking, savings/money marketing checking, and CDs which mature at different times);
• the need for a burial policy; and
• a plan that would allow the greatest returns.
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the application and the signed order approving the investment plan to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Probate Code § 854(a) requires the guardian of the estate to invest funds which are not immediately needed for the education, support, and maintenance of the ward or other person the ward supports. As part of this requirement and based on the size and complexity of the estate, the guardian must determine whether to simply invest the excess funds in the "safe harbor" investments (e.g., CDs) listed in Probate Code § 855(b) or file an investment plan for approval from the court. For guardianships with an application to appoint a guardian filed on or after September 1, 2007, Probate Code § 855B(a) requires the guardian to have either the estate assets in the safe harbor investments or file an investment plan within 180 days after qualification of the guardian of the estate. For guardianships with an application to appoint a guardian filed prior to September 1, 2007, the GS or supervisor should consult with the regional guardianship attorney to determine if the court requires an investment plan. For very large or complex estates, the court may approve an investment plan that is more comprehensive than simply placing the assets in the safe harbor investments. The guardian can be held liable for failing to invest any surplus funds of the ward's estate.

Unless otherwise directed by the court, DADS policy requires guardianship staff to invest excess funds of the ward only in:

• savings accounts, money market checking accounts, certificate of deposits in accordance with Section 4232, Re-titling or Setting up Bank Accounts; or
• burial policy in accordance with Section 4281, Burial – Purchasing a Pre-Need, Burial or Cremation Contract or Policy.

References:
Section 4232, Re-titling or Setting up Bank Accounts
Section 4281, Burial – Purchasing a Pre-Need, Burial or Cremation Contract or Policy

5851  Tax Motivated Gifts and Gift Plans

Policy: The GS shall determine if a gift or gift plan for the benefit of another person or entity to reduce taxes is in the best interest of the ward and the ward's estate.

Required Procedures – The GS:

• consults with the guardianship supervisor and regional guardianship attorney regarding the need and advisability of a gift or gift plan in any potentially appropriate estate;
• determines if the proposed plan is consistent with the ward's wishes;
• considers potential Medicaid eligibility issues and consults with the supervisor, regional guardianship attorney, and if needed, the HHSC Medicaid Eligibility Specialist;
• seeks and obtains approval from the guardianship supervisor and documents all consultations and approvals in the GOLD case record;
• consults with the regional guardianship attorney to retain experts such as attorneys, accountants, investment advisors, or estate planners to consult and if needed, create a proposed gift or gift plan, if the ward has funds to pay to create the plan;
• seeks court approval of the proposed gift or gift plan following the steps outlined in the Probate Code (Probate Code §865);
• implements the gift or gift plan as provided in the court order;
• follows all instructions regarding the plan from the supervisor, regional guardianship attorney, and experts;
• immediately notifies the supervisor and regional guardianship attorney to determine whether to agree to or contest the application, upon notification someone other than DADS as guardian of the estate is applying to create a gift or gift plan for the ward;
• documents consultations and actions in the GOLD case record ; and
• attaches a file-stamped copy of the application to make gift or gift plan and the signed order approving the gift or gift plan to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. This issue arises for the most part only in large estates with a potential for owing taxes. Before considering such plans, the support needs of the ward must be met for the present and foreseeable future. Support needs include the ward's own needs and the needs of any spouse or minor child that the ward has a legal duty to support. The GS, supervisor, and regional guardianship attorney will jointly determine if the proposed plan is in the ward's best interest consistent with the ward's desire, and is not exploitative of the ward. These issues are important when the application comes from a person other than DADS as guardian. The court makes a final determination of these issues and may assume that the ward would want to reduce taxes when the ward's intentions are not known or clear. Medicaid eligibility is generally not an issue in the large estate cases as medical and nursing facility care is private pay.

The guardian of the estate or any interested party may apply to the court for an order authorizing the guardian to apply the principal or income of the ward's estate not required for the support of the ward or the ward's family during the ward's lifetime toward the establishment of an estate plan for the purpose of minimizing income, estate, inheritance, or other taxes payable out of the ward's estate. The applicant must show it is believed the ward will remain incapacitated during the ward's lifetime.

The application requires posted notice and a hearing. The applicant is required to mail notice of the application by certified mail to:

• all persons who will receive property under a will, trust, or other beneficial instrument relating to the ward's estate;
• the ward's spouse and dependents; and
• any other person as directed by the court.

The court may appoint a guardian ad litem for the ward or any interested party at any stage of the proceedings, if necessary to protect their interests. The applicant is required to outline the proposed estate plan and set forth all the benefits to be derived from the estate plan. The application must indicate the planned disposition is consistent with the ward's intentions, past actions, and is not contradictory with the ward's best interests.

On the ward's behalf, the court may authorize the guardian to make gifts, outright or in trust, of the ward's personal property or real estate to or for the benefit of:

• a charity with IRS status in which it is shown the ward would reasonably have an interest;
• the ward's spouse, descendant, or other person related to the ward by blood or marriage who are identifiable at the time of the order;
• a person who receives property under the ward's last validly executed will, trust, or other beneficial instrument if the instrument exists; and
• a person serving as guardian of the ward if the person is eligible under either of the two bullets immediately above. This situation would never apply to DADS as guardian.

The court may authorize the guardian to make gifts on an annual or other periodic basis without subsequent application to or order of the court if the court finds it to be in the best interest of the ward and the ward's estate. A subsequent modification of an approved plan may be made by similar application to the court. The court, on the court's own motion or on the motion of a person interested in the welfare of the ward, may modify or set aside an order entered under this subsection if the court finds the ward's financial condition has changed in such a manner that authorizing the guardian to make gifts of the estate on a continuing basis is no longer in the best interest of the ward and the ward's estate.

References:
Probate Code §865

5860  Listing Burial Policies on Annual Accountings and Monthly Allowance

Policy: The GS shall furnish information to the GA for entry into the GOLD case record and shall ensure burial policies are listed on annual accountings and on the monthly allowance.

Required Procedures – The GS:

First Annual Accounting Period of Purchase of Burial Contract, Policy, or Space

• ensures pre-approval of the court was obtained prior to the purchase. If not, then consults with the regional guardianship attorney and follows his or her directions;
• enters the purchase upon written email notification to the GA and guardianship supervisor assuming the responsibility or ensures the full or incremental purchase of a pre-need burial contract, policy, or space is documented by the GA in the GOLD case record including:
• the purchase on the annual accounting in Section IV, "Changes in Property Valuation," increasing the total value of the estate by the face value of the contract, policy, or space;
• the expenditure of funds on the annual accounting in Section VI, "Cash Disbursements"; and
• the face value of the contract, policy, or space in the "Personal Property" division of Section VII of the annual accounting;
• enters an incremental purchase into GOLD upon written email notification to the GA and guardianship supervisor, assuming the responsibility, or ensures the GA documents an incremental purchase in the same manner except using the resale or surrender value instead of the face value until paid in full;
• enters the value upon written email notification to the GA and guardianship supervisor assuming the responsibility or ensures the value is entered in the GOLD case record as an asset of the ward;
• reviews legal forms for completeness and accuracy and signs the verification, if any;
• documents consultations and actions in the GOLD case record; and
• attaches a file-stamped copy of the annual accounting and the signed order approving the annual accounting to the GOLD case record and places the hard copy in the paper case file.

Subsequent Annual Accounting Periods

The GS:

• documents the face value of the contract, policy, or space in Section II "Personal Property" if a full purchase or subsequently paid in full;
• documents an incremental purchase in the same manner except using the resale or surrender value instead of the face value until paid in full;
• documents the sum of the payments made during the annual reporting period in Section VI "Cash Disbursements"; and
• reviews legal forms for completeness and accuracy and signs the verification, if any.

Discussion and Relevant Information. For cases in which a monthly allowance is required, guardianship staff must include information about the policy premium or payments for a contract or space. The GA is responsible for entry of the value of burial policies into the GOLD case record once they receive it from the GS. The GA is responsible for entering information furnished by the GS unless the GS indicates in writing he or she assumes the responsibility. If the GS chooses to enter the values into GOLD, he or she notifies the GA when it is entered.

References:
Section 5880, Annual Accounting – Requirement to File
Section 5810, Monthly Allowance

5870  Annual Report of the Person – Requirement to File

Policy: The GS shall file an annual report of the person in the appropriate court of jurisdiction no later than the 60th calendar day after the anniversary date of the date of qualification.

Required Procedures – The GS:

• completes the Annual Report of the Guardian of the Person, Form 5079, when DADS is guardian of the person or guardian of the person and the estate;
• ensures the Annual Report contains a brief description of the conditions and circumstances of the ward and contains a written recommendation whether or not restoration is appropriate at that time;
• submits the Annual Report to the guardianship supervisor and the regional guardianship attorney for review;
• mails or hand-delivers annual reports to the county clerk (Probate Code §743) once it has been approved;
• ensures relevant dates are entered in the GOLD case record; and
• attaches a file-stamped copy of the annual report and the signed order approving the annual report to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. Annual reports are not required if DADS is guardian of the estate only. The annual report of the guardian of the person is due every year within the same time frame as the annual accounting (if there is a guardianship of the estate also). The first annual reporting period begins on the date the letters of guardianship are issued and ends 365 days later, which is the anniversary date of the guardianship minus one day. Information reported in the annual report should cover this entire period.

Subsequent reporting periods cover the time between annual reports, which are the anniversary date of the issuance of letters of guardianship minus one day.

For example, if the original letters of guardianship were issued on May 12, 2005, the first annual reporting period begins on May 12, 2005 and ends on May 11, 2006, which is 365 days later. The annual report is due on July 10, 2006, which is 60 calendar days after the expiration of the reporting period. Subsequent reports cover the period between May 12th of the next year (i.e., 2006) one year and May 11th the next (i.e., 2007) and are due every year on July 10th.

The report contains:

• the Annual Report of the Guardian of the Person form which is completed by the GS;
• an affidavit signed by the GS swearing that the information is true and correct; and
• a prepared order for the judge to sign approving if the annual report is approved.

Letters of guardianship pertaining to the guardianship of the person are renewed when the court approves the annual report (Probate Code §659) if guardian of the person only. If the guardian fails to file the annual report, the guardian may be fined or the letters of guardianship revoked (Probate Code §744).

Statute requires DADS to re-evaluate the circumstances and conditions of the ward at least annually to ensure there is a continued need for the guardianship. The Annual Report of the Person should contain a brief description outlining the current circumstances and conditions and making a formal recommendation whether or not the guardianship should be continued. If restoration is recommended, the statement should contain supporting information.

References:
Probate Code §§659, 743 and 744
Annual Report of the Guardian of the Person, Form 5079

5880  Annual Accounting – Requirement to File

Policy: The GS shall file an Annual Accounting of the Guardian of the Estate in the appropriate court of jurisdiction no later than the 60th calendar day after the anniversary date of the date of qualification when DADS is guardian of the estate.

Required Procedures – The GS:

• enters or ensures relevant dates are entered in the GOLD case record;
• completes the Annual Accounting of the Guardian of the Estate, Form 5093, when DADS is guardian of the estate or guardian of the person and the estate;
• submits the Annual Accounting to the guardianship supervisor and the regional guardianship attorney for review;
• mails or hand-delivers the Annual Accounting to the county clerk (Probate Code §741) once it has been approved;and
• attaches a file-stamped copy of the annual accounting and an order approving the annual accounting to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. When DADS is guardian of the estate, annual accountings must be completed, unless extended or waived by the court. Annual accountings are not required if DADS is guardian of the person only.

The first annual accounting period begins on the original date of qualification and ends 365 calendar days later, which is the anniversary date of the guardianship minus one day. Information reported in the annual accounting should cover this entire period.

Subsequent accounting periods cover the time between annual accountings, which are the anniversary date of qualification minus one day. For example, if the original qualification were on May 12, 2005, the first annual accounting would begin on May 12, 2005 and end on May 11, 2006, which is 365 calendar days later. The accounting will be due on July 10, 2006, which is 60 calendar days after the expiration of the accounting period. Subsequent accountings will cover the period between May 12th one year and May 11th the next and will be due every year on July 10th. The annual accounting includes:

• the Guardian's Annual Accounting completed by the GS;
• the Verification of Funds on Deposit;
• verifications, such as bank statements, receipts, spread sheets of account (these may be reduced on a photocopy machine to limit the number of pages);
• an affidavit signed by the GS swearing the accounting is correct and complete, all tax returns have been filed, and all taxes owed during the accounting period have been paid; and
• the Order Approving the Guardian's Annual Accounting (GS obtains a copy for the paper case file once the order is signed by the judge).

Letters of guardianship pertaining to the guardianship of the estate are renewed when the court receives and approves the annual accounting (Probate Code §659). If the guardian fails to return the annual accounting, the guardian may be fined or the letters of guardianship revoked (Probate Code §744).

References:
Probate Code §§659 and 744
Annual Accounting of the Guardian of the Estate, Form 5093

5890  Account for Final Settlement

Policy: The GS shall prepare and file the account for final settlement upon the exhaustion of the estate, the death of the ward, the restoration of capacity of the ward or the appointment of a successor guardian within established timeframes unless required sooner by the court.

Required Procedures – The GS:

• prepares and files the relevant legal documents according to the following timeframes:
  • within 60 calendar days of the exhaustion of the estate, the restoration of the capacity of the ward, or the appointment of a successor guardian, unless an extension is received from the supervisor;
  • within 60 calendar days of the death of the ward, unless an extension is received from the supervisor; and
  • documents all extensions received in the GOLD case record;
• completes the following forms and attachments and information:
  • Account for Final Settlement, Form 5123;
  • Verification of Funds on Deposit, Form 5052;
  • Tax information, including:
    • A complete account of the taxes the guardian has paid during the guardianship, including the amount of taxes, the date the guardian paid the taxes, and the name of the governmental entity to which the guardian paid the taxes;
    • A description of all current delinquencies in the filing of the tax returns and the payment of taxes and a reason for each delinquency;
  • Order on Citation by Posting Instead of Publication, Form 5119, if appropriate; and
  • Order Approving Account for Final Settlement;
• submits the account and the other accompanying documents to the supervisor and regional guardianship attorney for review;
• files the account and other documents with the court upon approval of the regional guardianship attorney; and
• attaches a file-stamped copy of the account for final settlement and the signed order approving the account for final settlement to the GOLD case record and places the hard copy in the paper case file.

Discussion and Relevant Information. The estate of a ward should be closed as expeditiously as possible. If an estate is open more than six months after the death of a ward, the GS or the guardianship supervisor should staff the case with the regional guardianship attorney and the ROM. If given a deadline by the court which cannot be met, the GS should approach the ROM and regional guardianship attorney about requesting an extension from the court. Probate Code §749 permits the reference to be made to previously reported information instead of repeating information in subsequent filings.

References:
Probate Code §§745, 746, 748, 749, and 750-758
Account for Final Settlement, Form 5123
Verification of Funds on Deposit, Form 5052
Order on Citation by Posting Instead of Publication, Form 5119