New Guardianship Requirements

This article was originally printed in Dallas Bar Association Headnotes, December 2018

On June 1, 2018, new statewide guardianship requirements took effect for those seeking to be appointed as a guardian. These new requirements are administered through the Judicial Branch Certification Commission (JBCC), the state agency tasked with overseeing guardians and guardianship programs.

The new requirements regarding registration, criminal background check, and training arise from a statewide audit of guardianship cases that revealed a high percentage of cases out of compliance and follow the trend in recent years toward increasing requirements for guardianships.

While implementation of the new guidelines may vary by Court and may evolve over time, current guidelines for Dallas County Probate Courts are as follows:

Registration

Prior to any hearing on a guardianship application, a proposed guardian must register with JBCC either online or by paper form. The registration form requests information about:

• the proposed guardian, including name variations;
• the proposed ward;
• the proposed guardian’s attorney;
• the guardianship case and Court in which it is pending;
• the type of guardianship; and
• the liquid assets held by the estate.

The form also asks questions relating to the proposed guardian’s character and any disqualifying history.

Criminal Background Check

Upon receipt and review of the registration form, JBCC determines which type of criminal background check is required. If both 1) the proposed guardian is a Texas resident and 2) the proposed ward’s liquid assets do not exceed $50,000, a name-based criminal history is sufficient. If, however, either the liquid estate exceeds $50,000 and/or the proposed guardian resides out of Texas or out of country, a fingerprint-based criminal history is required. When a fingerprint check is required, JBCC sends information to the proposed guardian about obtaining digital fingerprinting through the Texas Department of Public Safety (DPS). The DPS fingerprint results are sent to JBCC.

JBCC submits the background check results to the clerk of the county where the guardianship application is pending. The background check must be delivered to the Court at least 10 days before the hearing on the application for guardianship. Given JBCC’s high volume of registrations and background checks to process, the applicant’s attorney is advised to submit the registration forms and, as appropriate, obtain digital fingerprints, with sufficient lead time to ensure that proof of compliance is received timely by the Court.

The new JBCC criminal background check takes the place of the background checks which had previously been handled in Dallas County by the Probate Court Investigator’s Office. However, currently the Court Investigator’s office is still processing background checks on temporary guardianships.

Training

The third new requirement imposed upon proposed guardians and guardians is completion of the guardianship training module on the JBCC website. The training module covers topics including reasons why guardianship may be necessary, alternatives, types of guardianship, procedure to establish, duties and reporting requirements of guardians, and modifying, terminating, or closing a guardianship. After completion of the training, the proposed guardian receives a certificate which must be filed with the Court.

Section 1104.003 of the Texas Estates Code states that a Court may not appoint a proposed guardian who has not completed the training unless waived by the Court. Presently the training is only available online and in English, though JBCC anticipates making it available in other forms and languages. Until alternatives are available, waivers may be granted to applicants who lack internet access or do not speak English. Some Courts may allow the hearing but delay signing the Order until the training certificate is filed.

For new permanent guardianships, the training must be completed prior to appointment. For new temporary guardianships, the training must be done within 60 days of appointment.

Existing Guardianships

For guardianships granted prior to June 1, 2018, the registration and training must be completed prior to renewal of Letters of Guardianship.

Integration into Your Practice

At the initial consultation, you may wish to provide the following to your client:

1. a letter detailing the steps for registration, training and the background check;
2. the paper JBCC guardianship registration form;
3. a copy of the Bill of Rights for Wards;
4. the Minimum Standards for Guardianship Services;
5. the Dallas County Guardianship Case Information Sheet;
6. the Dallas County Guardianship Questionnaire; and
7. a list of links to resources and guides for serving as a guardian.

Once the Application for Appointment of a Guardian of the Person and/or Estate is filed, ensure your client promptly registers, obtains the background check, and completes the Court Investigator’s forms. These steps must be completed before the Court Investigator will visit the proposed ward and file their report.

Guardianship attorneys should familiarize themselves with these new requirements and advise clients about them early in the guardianship application process. By doing so, attorneys can avoid delays in their clients’ applications and ensure that clients are well-informed about their responsibilities as guardians.

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Ellen Williamson is of counsel at Farrow-Gillespie Heath Witter LLP. She practices probate law, guardianship law, and estate planning. Ms. Williamson assists with the creation and delivery of many continuing legal education programs for attorneys and enjoys speaking about estate planning and probate topics for senior groups and others. She earned a J.D. from SMU Dedman School of Law.

Brian D. Hill practices at Law Offices of Brian Hill, PLLC. Ellen and Brian prepared this article for the Dallas Bar Association’s Headnotes publication after delivering a presentation about the new guardianship requirements to the September meeting of the DBA Probate, Trusts, & Estates Section. For more information on attorney Brian Hill, please visit https://www.brianhillattorney.com/.