Guardianship Laws

Adult Guardianship Statute: 
Right to Counsel in Statute: Initial Guardianship Proceedings: 
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Right to Counsel Statututory Citation: 

Tex. Prob. Code §§ 646A, 694C(a)-(b), 694K(a)

Right to Counsel Definition in Statute: 

"The following persons may at any time retain an attorney…to represent the person’s interests in a guardianship matter instead of having those interests represented by an attorney ad litem…:(2) a proposed ward for purposes of a proceeding for the appointment of a guardian as long as the proposed ward has capacity to contract.(b) If the court finds that the ward or the proposed ward has capacity to contract, the court may remove an attorney ad litem…and appoint a ward or a proposed ward’s retained counsel."" Tx. Prob. Code §§646A(a). "" The court shall appoint an attorney ad litem to represent a ward in a proceeding for the complete restoration of the ward's capacity or for the modification of the ward's guardianship. . .. Unless otherwise provided by the court, an attorney ad litem appointed under this section shall represent the ward only for purposes of the restoration or modification proceeding." Tx. Prob. Code § 694C.

Advocacy Role of Counsel Defined in Statute: 
Advocacy Role of Counsel Definition in Statute: 

Attorney ad litem appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, or an unborn person in a guardianship proceeding. However, if legal representative already appointed for proposed ward, then attorney shall defer to them to make decisions on behalf of the proposed ward. The code allows for the appointment of an attorney ad litem to represent and advocate on behalf of an "incapacitated person.” Section 694C of the probate code does state that the attorney ad litem’s responsibilities are completed once a guardian has been appointed.

Professional Rules &/or Ethics Opinions: 

Tx. Rule of Professional Conduct 1.02, regarding the scope and representation of a client, states that a lawyer shall abide by a client’s decisions. However, the rule specifically addresses clients with a disability. An attorney-client relationship between an attorney and a person with a disability can be established only by a legally effective appointment of the lawyer by the court to represent a person. Unless the lawyer is legally authorized to act for a person under a disability, an attorney-client relationship does not exist for the purpose of this rule. There is an exception, however. According to Daves v. Commission for Lawyer Discipline, 952 S.W.2d 573, 577 (1997), “notwithstanding Rule 1.02, then…the attorney-client relationship may be implied if the parties by their conduct manifest an intent to create such a relationship.” So, for example, if the parents of an incapacitated adult hire counsel to represent them and their child in a proceeding, the attorney is implicitly acting as counsel for the child and an attorney-client relationship is created despite the lack of approval from the court.

Case Law Discussing Role of Counsel: 

"Attorney ad litem” is defined as “an attorney who is appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, or an unborn person in a guardianship proceeding.” Coleson v. Bethan, 931 S.W.2d 706 (1996). Once a guardian has been appointed, there is no longer a “proposed ward,” but a “ward,” implying that the relationship should end once the “proposed ward” has become a “ward.” See Tex. Prob. Code Ann. § 601(1). Id. § 601(27), (31); see also id. § 646(a) (attorney ad litem is to represent the interests of the proposed ward); id. § 647(a) (attorney ad litem is to represent a proposed ward and discuss with the proposed ward the law and facts of the case, the proposed ward’s legal options and the grounds on which guardianship is sought).

Other Important Info: 

To comply with due process...(a) Each statutory probate court shall operate a court visitor program to assess the conditions of wards and proposed wards... A court that operates a court visitor program shall use persons willing to serve without compensation to the greatest extent possible. (b) On request by any interested person, including a ward or proposed ward, or on its own motion, and at any time before the appointment of a guardian or during the pendency of a guardianship of the person or estate, a court may appoint a court visitor to evaluate the ward or proposed ward and provide a written report. See Tx. Prob. Code § 648. On the filing of an application for guardianship…, a court investigator shall investigate the circumstances alleged in the application to determine whether a less restrictive alternative than guardianship is appropriate. See Tx. Prob. Code § 648A. The court shall use reasonable diligence to determine whether a guardian is performing all of the duties required of the guardian that pertain to the guardian’s ward.(b) The judge, at least annually, shall examine the well-being of each ward of the court. See Tx. Prob. Code § 671. The judge may appoint a guardian ad litem to represent the interests of an incapacitated person in a guardianship proceeding.(c) A guardian ad litem is an officer of the court. The guardian ad litem shall protect the incapacitated person in a manner that will enable the court to determine what action will be in the best interests of the incapacitated person.(e) In the interest of judicial economy, the court may appoint as guardian ad litem…the person who has been appointed attorney ad litem…or the person who is serving as an ad litem for the benefit of the ward in any other proceeding. Tx. Prob. Code §§ 645. (a) The guardian of the person is entitled to take charge of the person of the ward, and the duties of the guardian correspond with the rights of the person. Tx. Prob. Code § 767.

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