Table of Contents
This resource for lawyers highlights guardianship-related Texas Estates Code sections (unless otherwise specified) that were changed and updated by Senate Bill (SB) 1624 during the 88th Texas Legislative Session in 2023. Sections that were not amended by SB 1624 are not included in this resource.
Expressed Wishes
To ensure a person facing or subject to a guardianship is able to exercise their due process rights and to ensure their right to representation, attorneys ad litem (AAL) and hired attorneys representing these individuals have an attorney-client relationship and must represent the person’s expressed wishes.
- 1054.001 (Appointed AAL)
- 1054.006(a) & (d) (Hired Attorney & AAL)
- 1054.007(c) (AAL)
- 1202.101(a)-(b) (AAL in restoration)
Hiring an Attorney
Because guardianship is an ongoing liberty issue, people in guardianships need to be able to protect their rights even when they are still in a guardianship. To further ensure their due process rights, the person in or facing a guardianship must be able to retain their own attorney, if they wish, instead of being appointed an attorney ad litem in a guardianship proceeding, including for restoration or modification of guardianship. If there is a challenge to the person’s capacity to retain an attorney, the court may appoint an attorney ad litem if it finds, by a preponderance of evidence after a hearing, that the client does not understand the guardianship proceeding or the purpose for which the attorney was retained. Additionally, retained attorneys have access to the same records as an attorney ad litem.
- 1054.003 (access to records)
- 1054.006 (person may retain attorney for proposed guardianship or restoration/modification; procedure for challenging; limit scope of definition of “capacity” in this specific situation)
- 1202.101 (appointment AAL for restoration or modification unless attorney retained)
Client Autonomy and Involvement in Guardianship
Guardianships are considered a civil death and can strip a person of all autonomy. These new provisions help make sure clients have access to people who exert control in their life. For example, a client might want access to a physician so they can have private conversations and report abuse and neglect if necessary. Another example could be a client wanting access to the court to voice whether they want restoration or modification, and their views or concerns about the guardianship or guardian.
- 1151.351(b)(26) (right to speak to physician privately)
- 1201.053(a-2)(1); and (a-3) (periodic statements to court about person’s wishes)
Supports and Services, Including Training for Involved Persons
To ensure alternatives to guardianship and other supports and services are being properly sought, attempted, and evaluated, court investigators, court visitors, or guardians ad litem (GAL) in statutory probate courts and all guardians in their respective reports to the court must include information about what supports and services a person is receiving and whether with those supports and services the person has sufficient capacity to restore some or all of their rights. During a restoration or modification hearing, courts may review additional evidence of a person’s capacity or sufficient capacity, like statements from the local mental health or intellectual and disability authorities, employers, and other professionals providing services to the client. Also, all judges who have probate jurisdiction, court investigators, and court visitors must get at least one hour of training every two years regarding alternatives to guardianship.
- 1163.101(c) & (d) (guardian’s annual report must include list of supports and services, including actions to develop independence, and guardian’s opinion of whether person can be restored)
- 1202.152(a-3) (court may consider additional evidence of supports and services in restoration or modification hearing)
- 1202.053(a-1) & (a-2) (report to be completed every three years for review includes supports and services and statement of the person in guardianship)
- 1054.157 (training court investigator and visitor including one hour of alternatives every 2 years)
- Gov’t Code 22.0133 (training for judge, court investigator, court visitor including one hour of alternatives every 2 years)
Dr. Evaluation – Psychologist
New provisions expand who can complete a certificate of examination or a letter for an application for guardianship, restoration, or modification. These provisions emphasize that the psychologist must know the client or have experience working with patients who have an intellectual or developmental disability (IDD).
- 1101.103 (guardianship application in general)
- 1101.103(a-1) (psychologist must have experience with individuals with IDD, or established patient-provider relationship)
- 1202.152(a)(1), (a)(2) & (c) (restoration or modification application; must have patient-provider relationship or experience with patients with IDD)
- 1202.1521 (certificate or letter for alleged IDD)
Appointment of Guardian Ad Litem
1054.051(b) (GAL cannot be interested person or AAL in the guardianship with exceptions)
Publication Code: SDM17
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Disclaimer: Disability Rights Texas strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate.
The handout is not intended to and does not replace an attorney’s advice or assistance based on your particular situation.
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