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How to Apply for Guardianship in Dallas County | Ellen Williamson

How to Apply for Guardianship in Dallas County

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This article was originally published by UNT Dallas College of Law on January 1, 2020.

How to Apply for Guardianship in Dallas County | Ellen Williamson

The process to apply for permanent guardianship in Dallas County can often be a complicated process.The process for applying in Dallas County is as follows:

1. The applicant files an application for appointment of permanent guardianship with the certificate of medical examination (“CME”) as a separate document. The CME contains sensitive details about the proposed ward and is not available on the public court records website.1

2. A file-stamped copy of the application must be personally served on the proposed ward and served by certified mail on certain other family members. If applicable, the administrator of the facility where the ward resides must also be served by certified mail.2 Further, the applicant must file a certificate confirming that all interested parties were properly noticed.3

3. The applicant must post a $400 deposit with the Clerk for the attorney ad litem’s fee, unless an affidavit of inability to pay costs is on file.

4. The proposed guardian(s) (usually the applicant(s)) must register with the Texas Judicial Branch Certification Commission (“JBCC”) to undergo a criminal background check and complete an online training module.4

  • The JBCC forwards the background check results to the court in which the guardianship application is pending. The results must be on file at least 10 days before the hearing on the application can take place.
  • The proposed guardian must also file the certificate of completion of the training module with the court.

5. The court appoints a Court Investigator who meets with the proposed ward and applicant, then prepares and files a report.5 The Court Investigator acts as the eyes and ears of the court.

6. The court appoints an attorney ad litem to represent the proposed ward’s legal interests.

7. The attorney ad litem investigates, interviews the proposed ward, and files an answer on behalf of the proposed ward.6

8. If appropriate, the attorney ad litem may make a Motion for Appointment of a Guardian Ad Litem to speak to the proposed ward’s best interests, which may not coincide with the proposed ward’s legal interests.7

9. The court holds a hearing on the guardianship application.

10. If the application is granted, the Judge signs an order appointing the guardian.8

11. Upon appointment, the guardian takes an oath and posts a bond. Bonds for guardians of the person are typically $100-$500, depending on the Court. Bonds for guardians of the estate must be corporate surety bonds with the amount based on the estate size.9

Upon qualification, the guardian may then receive Letters of Guardianship (i.e., their “badge”) to show that they have authority to act on the ward’s behalf.10

For a general overview of guardianship, please visit: https://fghwlaw.com/overview-of-guardianship/.

Ellen Daniel Williamson | Farrow-Gillespie Heath Witter LLP

Ellen Williamson is of counsel at Farrow-Gillespie Heath Witter LLP. She has more than fifteen years of experience as an attorney, and practices probate, estate planning, and guardianship law. She was selected as one of “DVAP’s Finest” for her pro bono volunteer efforts through the Dallas Volunteer Attorney Program; she is a member of the Dallas Bar Association Probate, Trusts, & Estates section; a member of the estates manual committee; and a former co-chair of DAYL Elder Law Committee. 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 her J.D. from SMU Dedman School of Law.

Sources

1 Tex. Est. Code Ann. § 1101.001; Tex. Est. Code Ann. § 1101.103.
2 Tex. Est. Code Ann. § 1051.101-203.
3 Tex. Est. Code Ann. § 1051.104(b)
4 Tex. Govt. Code § 155.151; Tex. Est. Code Ann. § 1104.404; Tex. Est. Code Ann. § 1104.003
5 Tex. Est. Code Ann. § 1054.151-153.
6 Tex. Est. Code Ann. § 1054.004.
7 Tex. Est. Code Ann. § 1054.151; Tex. Est. Code Ann. § 1054.154.
8 Tex. Est. Code Ann. § 1151.151-152.
9 Tex. Est. Code Ann. § 1105.001-002.
10 Tex. Est. Code Ann. § 1106.001.

Dallas Paid Sick Leave Ordinance

Dallas Paid Sick Leave Ordinance Struck Down

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Dallas Paid Sick Leave Ordinance

Penalties associated with a City of Dallas sick leave ordinance that was rolled out last August were scheduled to become effective on April 1, 2020. The penalties have been the subject of much discussion since the striking down of a similar Austin ordinance and the subsequent filing of a federal lawsuit seeking to prohibit enforcement of the Dallas ordinance. U.S. District Judge Sean Jordan put an end to the suspense by issuing an injunction on March 30, 2020, which struck down the ordinance as unenforceable and prohibited the City from issuing penalties.

The ordinance would have required Dallas employers to provide paid sick leave for most employees. In particular, the ordinance mandated the payment of one hour of sick leave for every thirty hours worked by employees who were employed for at least eighty hours in a year. Small businesses of five or fewer employees were not required to comply until August 2021, and businesses with fifteen or fewer employees could cap paid sick leave at forty-eight hours a year. Independent contractors and government employees were excluded.

The decision was not unexpected given the decision of the Austin Court of Appeals concerning the City of Austin’s sick leave ordinance. Judge Jordan largely agreed with the analysis of the Austin court, determining among other things that the ordinance violated Texas’ minimum wage laws.

The issue now goes back to the Dallas City Council to decide whether to appeal the ruling or to prepare a revised ordinance.  In the era of COVID-19, it will be interesting to see what the Council does next. If you have any questions about this ruling or any other employment matter, please feel free to contact our employment law department for assistance.

Tahlia Clement

Tahlia Clement’s primary practice areas are marketing, advertising and promotions law, health law, internet law, and general business transactions. Tahlia graduated from SMU Dedman School of Law and holds a B.A. in journalism and mass communications from Arizona State University.

Dallas Paid Sick Leave Ordinance

City of Dallas Paid Sick Leave Ordinance

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Dallas Paid Sick Leave Ordinance

Chapter 20 of the Dallas City Code entitled Earned Paid Sick Time went into effect August 1, 2019. The provision requires employers to provide paid sick leave to workers. It applies to any private business (governmental employers are exempt) that employs at least one person either full or part time at a minimum of eighty hours a year within the Dallas city limits.

Overview of Dallas Ordinance

The ordinance calculates the accrual of paid leave time at the rate of one hour for every thirty hours worked. An employee can use this accrued hour for illness, injury, preventive medical or healthcare, or health condition. This also extends to the care of a family member’s physical or mental illness. Time off for relating to being the victim of a criminal attack that resulted in injury or illness also qualifies. However, an employer may not inquire as to the nature of the circumstances for employees taking time off for this purpose.

If an employer has sixteen or more employees, an employee may accrue up to sixty-four hours in paid leave time. For employers with fifteen or fewer employees, this total is reduced to forty-eight hours, and for employers with five or fewer employees, this ordinance does not go into effect for two more years.

Employers operating a fiscal year other than a calendar year must provide each employee with written notice of such policy by August 1, 2019, and thereafter at the commencement of employment. Employers are required to maintain records of the accrued paid sick time used and/or available to each employee.

The ordinance also affects bookkeeping and HR departments. It requires that each employee receive a monthly written or electronic statement showing the amount of the employee’s available earned paid sick time. If an employer issues an employee handbook, it must be amended to include a notice of an employee’s rights and remedies under this ordinance.

Fines for violating the ordinance for non-compliance will not be levied until April 1st, 2020, and per the City of Dallas Chief of Equality and Inclusion, the City will seek “voluntary compliance with the ordinance before seeking payment of a fine.” Civil fines can range up to five hundred dollars per violation.

Lawsuits and Injunctions

Similar ordinances passed by the cities of San Antonio and Austin have been challenged by lawsuits. This litigation has resulted in the City of San Antonio delaying implementation of its program until December 1, 2019. However, the city’s concession did not dispose of the case.

Austin’s paid sick and safe leave law ordinance is subject to a temporary injunction, suspending enforcement of the ordinance. The Austin Court of Appeals has found the ordinance to be unconstitutional. The lawsuit is expected to be resolved in the Supreme Court of Texas.

As of the date of this article (August 15, 2019), the status of Dallas’s ordinance is unclear. The State of Texas, joined by a staffing agency and a law firm, has filed suit in the federal court in Sherman, Texas, to challenge the ordinance. The situation is unresolved and changing week by week, but until the court enters a temporary injunction suspending the Dallas ordinance, it remains in effect.

Employers and employees are urged to contact counsel for legal advice concerning status and enforcement of the ordinance. This article is intended as an overview only, and is not a full legal analysis.

Henry Wehrmann | Farrow-Gillespie & Heath LLP | Dallas, TX
Henry Wehrmann
Business Litigation Defense

Henry S. Wehrmann practices in the primary areas of employment litigation defense, trade secrets and other intellectual property litigation, personal injury litigation defense, and products liability litigation defense. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and is a former chair of the Sports & Entertainment Law section of the Dallas Bar Association.

New Guardianship Requirements

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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.

Ellen Daniel Williamson | Farrow-Gillespie Heath Witter LLP

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/. 

CREW | CREW logo

Interview: What is CREW?

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Last month, Farrow-Gillespie Heath Witter welcomed real estate attorney Paula Beasley to the firm. We value Ms. Beasley not only for her extensive experience with commercial real estate law, but also for her passion and dedication to her community. Currently, she is the president-elect of the CREW Dallas Chapter. The following is an interview with Ms. Beasley regarding her ongoing work with CREW.

CREW | CREW logo

What is CREW?

CREW Dallas – Commercial Real Estate Women – is a local business network that creates success for women in commercial real estate. CREW Dallas is the leading organization for decision-making executive women that provides opportunities for networking, education, leadership development, and civic/philanthropic involvement.

CREW Network is the industry’s premier business networking organization dedicated to advancing the achievements of women in commercial real estate.  CREW Network members comprise professionals globally and represent nearly all disciplines of commercial real estate. CREW Network currently has 74 chapters in the US and Canada and one affiliate in the UK.

When was the CREW Dallas Chapter and Crew Network founded?

The CREW Dallas Chapter began in 1980 with a small group of 12 “real estate girls” who wanted to bond together in the male-dominated industry of commercial real estate.  Today we have over 330 Dallas members.

CREW Network was founded in 1989 on the same principles of bringing together women in commercial real estate to exchange information, develop business contacts and help each other succeed professionally. Currently, we have 10,640 Network members in the US, Canada, and the UK.

What is your role, Ms. Beasley, as President-Elect of the CREW Dallas Chapter?

As President-Elect of the CREW Dallas Chapter, I began a 4-year executive service role with our chapter in January of 2017.  As of January 2018, I will be the CREW Dallas President.  The following year I will serve as Past-President and then as Chapter Advisor.

As President-Elect, I am a member of the CREW Dallas Board of Directors and the CREW Dallas Executive Committee. I also serve as a Board Member of our philanthropic organization, CREW in the Community. I am one of two CREW Dallas delegates to the Network and have attended three leadership summits this year at which delegates from all Network chapters attend leadership training, participate in educational seminars, and vote on any business of the organization.  This year I traveled to Los Angeles and Toronto for summit meetings and the third was recently held in Houston prior to the CREW Network Convention. I have a role on the CREW Dallas Nominating Committee which chooses award recipients throughout the year.  And finally, as President-Elect, I have a seat on the NTCAR Board of Directors.

What are the organization’s goals for the future?

CREW Dallas has a strategic plan which contains seven goals:

  1. Networking/Social – to make member to member interactions the primary focus of all activities. To promote member to member business or referrals along with business development opportunities.
  2. Professional Education – to produce timely, relevant programming that responds to member needs, advances their success, and develops leaders.
  3. Marketing / Communication – to create strong visibility for members and the organization through a robust, effective, and relevant marketing program.
  4. Membership Development – to have a growing, engaged, loyal and diverse membership that encompasses all commercial real estate disciplines and career stages.
  5. Revenue / Finance / Funding – to manage our finances in a prudent and strategic way and secure the necessary funding to support our mission and achieve its goals.
  6. CREW Network – to support the mission of CREW Network and encourage member involvement.
  7. Philanthropy – to provide networking and leadership opportunities for our members through CREW in the Community.

 

You attended the CREW Network Convention in Houston this past week. What is the convention’s purpose?

CREW Network hosts an annual convention in different locations each year.  Last year we met in New York City; this year was in Houston; next year we will meet in San Diego. The CREW Network Convention aims to bring women together from around the country where relationships are formed, developed, and strengthened.

The host city chapter works with the Network organization to arrange tours of the city, networking dinners, industry leader speakers and several break-out sessions on current topics. City excursions give the “inside scoop” on the local markets, buildings, and developments that are unique to that area. For example, when Dallas hosted the convention, we arranged tours of Cowboy Stadium, NorthPark Mall and our Arts District. This year’s convention featured terrific insights from Dr. Travis Bradberry on emotional intelligence, Spencer Levy on the CRE market, and the actress Geena Davis about building strong, confident young women through positive roles in film and media.

What are your favorite parts of the CREW Network Conventions?

 My favorite part is re-connecting with friends that I met at previous conventions and leadership summits. I also enjoy spending time with our Dallas Chapter friends. The convention provides a way to network and get to know people on a personal level outside of work that builds lasting relationships and friendships – which usually leads to doing business together at some point down the road.

What’s new in commercial real estate these days?

Autonomous cars and voice command are the new trends in commercial real estate. Autonomous cars are not too far in our future and they will affect the development of commercial parking, roadways, and infrastructure. Voice command technology is increasingly being built into commercial sites, such as hotels and other buildings of the hospitality industry. One hotel developer is planning to have an Amazon Alexa in every hotel room.

 

For more information, please visit:
CREW Dallas Chapter 
CREW Network 

Paula Beasley practices commercial real estate law, providing counsel and facilitating negotiations for clients involved in sales and acquisitions of real estate. Ms. Beasley provides legal services on a variety of issues including lease enforcement and defense of fair housing complaints.

Paula is an adjunct professor at SMU Cox School of Business, the 2017 President-Elect of the Dallas Chapter of Commercial Real Estate Women (“CREW”), and has been named to the lists of “Best Women Lawyers in Dallas” and “Best Lawyers in Dallas under 40” by D Magazine.

Probate Law | Farrow-Gillespie & Heath LLP

Dallas Probate FAQs

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Can I probate a Will in Dallas without an attorney?

Unfortunately, no. The Probate Courts do not allow individuals to appear on behalf of themselves. For all purposes in Probate Court, you must hire a lawyer.

I’ve been appointed as the Executor of a Will.  What am I supposed to do?

The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.

I am the Executor, and I have the original Will.  Why does it need to be probated?  Why can’t I just give away the property according to the Will’s terms?

Although the Will names you as Executor, the law says you are not officially the Executor until you qualify and receive your Letters Testamentary from the probate court. You need authority from the probate court to transfer the property to the new owner — especially if any of the property to be distributed is held under a “title,” such as a house, vehicle, bank account, or real estate.  By probating the Will, you obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.

What if I want to contest a Will? 

Contact a probate attorney immediately. If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.

What if the Will doesn’t provide for an independent representation?

If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive. (This situation emphasizes why it is important for anyone who owns property to have a properly drawn-up Will.)

What if there is no Will?

If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property. If the decedent owned property worth more than $50,000, the next of kin (or other person with an interest in the estate) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.

All the deceased person owned was his or her home. Does the Will still need to be probated?

Yes. Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house. However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property. The procedure is called a “Muniment of Title.” Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.

I have looked everywhere for the original of the Will and can’t find it. What should I do?

It may be possible to probate a copy of the Will. Also, it may be that the decedent had a safety deposit box to which you do not have access. We can assist you in finding the box and obtaining a court order to gain access to it.