Tag Archive for: Guardianship

How to Apply for Guardianship in Dallas County | Ellen Williamson

How to Apply for Guardianship in Dallas County

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.


Tex. Est. Code Ann. § 1101.001; Tex. Est. Code Ann. § 1101.103.
Tex. Est. Code Ann. § 1051.101-203.
Tex. Est. Code Ann. § 1051.104(b)
Tex. Govt. Code § 155.151; Tex. Est. Code Ann. § 1104.404; Tex. Est. Code Ann. § 1104.003
Tex. Est. Code Ann. § 1054.151-153.
Tex. Est. Code Ann. § 1054.004.
Tex. Est. Code Ann. § 1054.151; Tex. Est. Code Ann. § 1054.154.
Tex. Est. Code Ann. § 1151.151-152.
Tex. Est. Code Ann. § 1105.001-002.
10 Tex. Est. Code Ann. § 1106.001.

Overview of Guardianship | Ellen Williamson

An Overview of Guardianship

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

Overview of Guardianship | Ellen Williamson

Guardianships can be granted by a court when an individual requires assistance handling their personal or financial affairs.

What is a guardian?

A guardian is a person appointed by a court to manage the person, estate, or both, of an incapacitated person, called a ward.1

What are the different types of guardianship?

A guardian of the person is someone who makes medical, educational, residential, employment, marriage, and similar decisions for a ward. A guardian of the estate is someone who manages property on behalf of a ward. The general powers and duties of a guardian of the person are outlined in Chapter 1151 of the Texas Estates Code (available here).

A ward may need a guardian of the person, a guardian of the estate, or both, depending on the circumstances. For example, a young adult with an intellectual disability whose parents seek to become her guardian as she reaches adulthood may not have an estate to manage. However, a senior with dementia or an adult who suffers a traumatic brain injury may need assistance with both personal and financial decisions.

Permanent guardianship may be granted when the need is expected to continue indefinitely. If there is both immediate and ongoing need, the court may grant a temporary guardianship pending a hearing on the permanent application.

Temporary guardianship may be granted when a court finds that there is: (1) a substantial likelihood that the proposed ward is incapacitated; and (2) probable cause to believe that there is imminent danger to the proposed ward’s physical health, safety, and estate.2 Temporary guardianships are initially granted for 60 days but may be extended.3

Temporary guardianships are similar to permanent guardianships in many respects. One key difference, however, is that the Estates Code identifies the full powers granted to a permanent guardian of the person or estate, but does not grant any default temporary guardian powers. For that matter, the Estates Code does not refer to a “temporary guardian of the person” or “temporary guardian of the estate,” but only a “temporary guardian.” Particular care must be taken in drafting the application for temporary guardianship and the proposed order appointing the temporary guardian to ensure that the relief requested is appropriate to the need.4

Another key difference is that due to the time-sensitive nature of the need, the burden of proof is lower for temporary guardianship. Accordingly, this means that a person for whom a temporary guardian is appointed is not necessarily presumed to be incapacitated.5

When is guardianship needed?

Guardianship is the most restrictive legal status short of incarceration. A person under guardianship is stripped of his right to make his own decisions and manage his own estate. Before a court can appoint a guardian, it must find that the person is incapacitated and the proposed guardian suitable, but also that there are no other alternatives.6 In other words, the court must find, by clear and convincing evidence, that the person is incapacitated and that only guardianship can meet the person’s needs and protect his interests.7

A partially incapacitated person may need assistance with some tasks while retaining the ability to do others. Consistent with the goal of restricting a person’s rights only to the extent necessary to protect him, the Court may create a limited guardianship in which the ward retains some rights, and the guardian is granted only limited powers.8

When considering guardianship, it is important to determine whether a less restrictive alternative may be available. For example, if the person has previously executed powers of attorney or has capacity to do so, guardianship may be avoided. If the allegedly incapacitated person is married and has no separate property, the spouse may act as community administrator of the entire community estate as a less restrictive alternative to the more costly and difficult guardianship of the estate. If the alleged incapacitated person is a young adult with no property except Supplemental Security Income (“SSI”), the person who serves as guardian of the person may also apply to be the representative payee for SSI. Such alternatives can save money and time and, more importantly, allow the incapacitated person to retain as many rights as possible.

Who represents the proposed ward in a guardianship?

The court appoints an attorney ad litem to represent the legal interests of the proposed ward.9 Such representation may include contesting the application on the merits, challenging the allegation of incapacity, or arguing that someone other than the proposed guardian is a more appropriate person to serve. However, even when there is no genuine dispute of the medical evidence or the proposed guardian’s suitability to serve, the attorney ad litem should continue to investigate and evaluate the availability of less restrictive alternatives. 

The attorney ad litem role is similar to that of a public defender in a criminal case. Just as a criminal defense attorney should not confess judgment on their client’s behalf by saying that their client is guilty, an attorney ad litem should not admit their client’s incapacity.

Who can represent an applicant or serve as attorney ad litem for a proposed ward in a guardianship matter?

The applicant’s attorney and attorney ad litem for the proposed ward must be certified by the State Bar of Texas to participate in a guardianship proceeding.10 An attorney is initially certified for two years, and after being certified for two consecutive two-year terms, is then recertified for four years.

To earn such certification, the attorney must complete a four-hour course about guardianship law and procedure sponsored by the State Bar of Texas. One hour of this course focuses on alternatives to guardianship and supports and services available to proposed wards.

Who might need a guardian?

There are three broad categories of people who may need a legal guardian:

  1. A minor;
  2. A person who must have a guardian to receive money from a governmental source; or
  3. An adult who, because of physical or mental condition, is substantially unable to provide for their basic needs of food, clothing, and shelter, care for their physical health, or manage their finances.11

The majority of guardianship proceedings involve the third category, adults who, because of incapacity, are unable to care for themselves or manage their property. More specifically, adult persons under guardianship generally fall into one of these three groups:

 1.     People with an intellectual disability or other special needs

Members of this group typically have never had, or may not be expected to ever have, capacity. During their childhood, their parents, as their natural guardians, were able to make decisions for them.  If they still require assistance once they reach adulthood, one or more parents are often the guardians. Because such wards often have no property and no income other than Supplemental Security Income (SSI), there may be no estate to manage.

Such guardianships may be created as soon as the ward turns 18, and the application for guardianship may be filed up to 6 months before the proposed ward’s 18th birthday. However, guardianship cannot take effect until the ward reaches adulthood.

 2.     People who have suffered a traumatic brain injury

Members of this group have reached adulthood and may have had full capacity until a traumatic brain injury left them unable to care for themselves or their property. Some members of this group may have the possibility of recovering partial or full capacity in the future.

 3.     People with aging brain issues

Members of this group include seniors with dementia and similar conditions in which memory and cognitive function decline, leaving the person increasingly unable to manage his care or property. Due to the progressive nature of such degenerative conditions, guardianships created for wards with aging brain issues are generally permanent without expectation of restoration.

A significant difference between the first group and the latter two groups is that members of the latter groups had capacity before their incapacity arose. Thus, they may have signed powers of attorney or otherwise planned for future incapacity such that guardianship may not be necessary or may be limited in scope. However, these last two groups are also much more likely to have an estate to manage. This estate may need to be preserved and invested or, alternatively, spent down in a managed way to enable the ward to qualify for Medicaid. In other words, persons who do not become incapacitated until later in life may be less likely to need a guardian once incapacity arises. But if guardianship is needed, it is typically a more complicated and expensive process than a guardianship for a person who has never had capacity.

What does a permanent guardian need to do once appointed?

The role of the guardian of the person includes taking possession of, caring for, supervising, and protecting the ward.12 This includes making medical decisions, choosing an appropriate residence, and making decisions about employment, education, and marriage. The guardian of the person is not required to be represented by an attorney after the hearing.13

The role of the guardian of the estate, on the other hand, is significantly more involved. In fact, the guardian must be represented by an attorney for the duration of the guardianship. The guardian of the estate immediately takes possession of the ward’s property and records.14 The guardian must file an inventory listing all the ward’s property within 30 days after qualification15 and, as appropriate, apply for a monthly allowance16 and file an investment plan.17 The guardian must notify the Internal Revenue Service (IRS) of the fiduciary relationship and give appropriate notices to creditors.18

Guardianship is inherently a dependent administration—that is, like a game of “Mother may I?” The guardian must obtain Court permission for nearly all acts, such as expending the ward’s funds, accepting creditor claims, and selling or leasing estate property.19

Letters of Guardianship expire annually. To renew them, a guardian of the person must file an annual report updating the Court on the ward’s condition.20

The guardian of the estate must file an annual account detailing all receipts, expenditures, transfers between accounts, and changes in the value of the property.21 The surety bond must also be renewed.

Once the annual report or account has been approved, the court signs an Order approving such filing and authorizing the Clerk to issue new Letters of Guardianship.

How can a guardianship be modified?

The ward or any interested person may petition the court for an order to modify the guardianship to either expand or limit the guardian’s powers.22 If the guardian was initially granted only limited powers, and the ward’s condition declines, the court may grant additional powers. On the other hand, if the ward regains abilities, the court may partially or fully restore the ward’s rights.

When restoration of rights is sought because the ward is believed to have regained full or partial capacity, a physician’s certificate of medical examination specific to restoration cases is required.23 If the guardian dies or resigns, the court will appoint a successor.24 Guardians can also be removed for failure to file an annual report or account or otherwise failing to remain in compliance with requirements. 25

How and when is a guardianship terminated?

Permanent guardianships are terminated once the guardianship is no longer needed, such as if the ward dies or regains capacity. A guardianship of the estate may also be terminated if the estate is exhausted or the ward’s only remaining assets are being managed by other means.

When a guardianship of the person is terminated, the guardian files a final report.26

When a guardianship of the estate is terminated, the guardian files a final account.27 Upon Court approval of the final account and delivery of the ward’s estate, if any, to the person entitled to such possession, the Court discharges the guardian and releases the guardian’s surety from its bond.28

For steps on how to apply for guardianship in Dallas County, please visit: https://fghwlaw.com/how-to-apply-for-guardianship-in-dallas/.

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 has practiced probate, estate planning, and guardianship law since 2013. 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 a J.D. from SMU Dedman School of Law.


Tex. Est. Code Ann. § 1002.012.
2 Tex. Est. Code Ann. § 1251.001.
3 Tex. Est. Code Ann. § 1251.151.
Tex. Est. Code Ann. § 1251.010.
Tex. Est. Code Ann. § 1251.002.
Tex. Est. Code Ann. § 1002.0015; Tex. Est. Code Ann. § 1002.031.
Tex. Est. Code Ann. § 1101.101.
Tex. Est. Code Ann. § 1101.152.
Tex. Est. Code Ann. § 1054.001-004.
10 Tex. Est. Code Ann. § 1054.201.
11 Tex. Est. Code Ann. § 1002.017.
12 Tex. Est. Code Ann. § 1151.051-056.
13 Tex. Est. Code Ann. § 1163.105.
14 Tex. Est. Code Ann. § 1151.101-152.
15 Tex. Est. Code Ann. § 1154.051-053.
16 Tex. Est. Code Ann. § 1156.051.
17 Tex. Est. Code Ann. § 1161.051.
18 Tex. Est. Code Ann. § 1153.001-005.
19 Tex. Est. Code Ann. § 1151.102-1151.103, Tex. Est. Code Ann. § 1158.
20 Tex. Est. Code Ann. § 1163.101-1163.102.
21 Tex. Est. Code Ann. § 1163.001-002; Tex. Est. Code Ann. § 1163.051.
22 Tex. Est. Code Ann. § 1202.
23 Tex. Est. Code Ann. § 1202.152.
24 Tex. Est. Code Ann. § 1203.102.
25 Tex. Est. Code Ann. § 1203.
26 Tex. Est. Code Ann. § 1163.103.
27 Tex. Est. Code Ann. § 1204.101.
28 Tex. Est. Code Ann. § 1204.152.

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:


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.


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/

Revised Durable Power of Attorney Act

Many sign a Durable Power of Attorney (DPOA) in order to name an agent to handle their finances in case of future illness or incapacity. On November, 1, 2017, the Texas Legislature revised the Texas Durable Power of Attorney Act. The revisions address a frustrating and common problem encountered by Texans attempting to act under a durable power of attorney: third parties (including but especially financial institutions) who reject a valid durable power of attorney with no explanation or request impossible demands. It was not uncommon for a third party to reject a power of attorney and insist that the principal, the maker of a DPOA, execute another “form” provided by the third party. Executing such a form, of course, is not possible when the principal has lost the capacity necessary to execute such a document. The revisions, which apply to all powers of attorney whether executed before or after the revisions, take a “stick and carrot” approach to ensuring third parties recognize durable powers of attorney.

The Carrot

The “carrot” provides that if a durable power of attorney is accepted by a third party “in good faith and without actual knowledge that the durable power of attorney is void, invalid, or terminated, that the agent’s authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent’s authority, the person may rely on the power of attorney and the agent’s authority as if it were genuine, valid, and still in effect.” Put simply, third parties relying on a durable power of attorney in good faith won’t be held liable if that document later turns out to be invalid.

The Stick

The revised Act provides limited circumstances in which a third party may refuse a power of attorney and a time limitation for doing so. It also allows a third party to request a certification from the agent or an attorney’s opinion on any particular power of attorney. The “stick” authorizes the agent of the DPOA to sue any third party who does not timely accept or reject a power of attorney, or who rejects a power of attorney for an improper reason. The agent also is entitled to recover reasonable and necessary attorneys’ fees.

Additional Revisions

The revisions also change the statutory durable power of attorney form in helpful ways, such as utilizing the term “termination” where it once used “revocation,” which clarified that a principal may terminate an agent’s authority without terminating the authority of other agents appointed under a common power of attorney.

The revisions are a result of an endeavor by Real Estate, Probate, and Trust Law (REPTL) Section of the State Bar of Texas. While the revisions are still fairly new, agents under a durable power of attorney can act with confidence that third parties will accept a valid power of attorney.

If you or someone you know has had problems with persons, third parties, or companies accepting a power of attorney, an experienced probate attorney can assist. These situations can often be resolved without the necessity of a lawsuit.

Ryan Sellers’s primary practice areas are probate litigation, guardianship litigation, and probate law. Mr. Sellers joined the firm from his solo practice in Hurst, Texas, where he represented individuals and businesses in a wide variety of civil disputes. He graduated from Baylor Law School in 2014, where he was a member of the Baylor Barrister Society.

Estate Planning | Farrow-Gillespie & Heath | Dallas, TX

Capacity to Sign

Estate Planning | Farrow-Gillespie & Heath | Dallas, TXDifferent legal actions require different levels of mental capacity to be valid. For example, the level of mental capacity required to sign a will, referred to as “testamentary capacity,” is lower than the level of capacity required to sign a contract, called “contractual capacity.” The various standards are discussed below.

Capacity to Sign a Will – Testamentary Capacity

To have testamentary capacity, the will signer must satisfy five requirements. First, the signer must understand the business in which they are engaged.  Second, the signer must understand the effects of making a will. Third, the signer must understand the general nature and extent of their own property. Fourth, the signer must know to whom their property should pass or is likely to pass. And fifth, the signer must be able to collect all of this information in their mind at once and understand the how it all connects. They also must not suffer from an “insane delusion” that affects the will, nor be under undue influence from an outside party.

A person signing a will may do so during a lucid interval (sometimes also known as a “moment of clarity”), which is a time of mental capacity that is both preceded and followed by periods of mental incapacity. As long as the signing occurs during this lucid interval, the person has capacity to execute the document at issue.

Testamentary capacity must be proven only if the will is challenged by someone during the probate process. The party seeking to uphold the will (the will proponent) is the party who must prove that the testator did, in fact, have capacity at the time of the will signing. To guard against claims to the contrary, the estate planning attorney should be certain that the testator has capacity at signing, and should not allow someone with questionable capacity to execute a will.

Capacity for Other Legal Arrangements

In contrast to testamentary capacity, the standard for legally signing other documents is generally higher.

Contractual Capacity

Contractual capacity is the mental capacity required to validly execute a contract. Contractual capacity requires that the contracting person appreciates the effects of the act of signing the contract, and understands the nature and consequences of signing the contract as well as the business that they are conducting.

Power of Attorney

Although not entirely clear under Texas law, proper execution of a power of attorney probably requires contractual capacity. The reason is that the POA is valid during the signer’s lifetime and can have a profound effect on business and financial transactions.

Donative Capacity

Donative capacity, or the capacity to make a gift, is an elusive concept in Texas, but other states require something that appears to be higher than contractual capacity. Common requirements are that the donor of the gift must understand the nature and purpose of the gift, the kind and amount of property given, who is a reasonable recipient of the gift, and the effect the gift will have on the donor. Some states go so far as to require that the donor understand that the gift is irrevocable and that it will reduce the donor’s own assets.

Health Care Decisions

The capacity required to make health care decisions is more than mere mental capacity. Patients must give “informed consent” to all health care procedures, which requires that the patient be competent and that the consent be given voluntarily. The consent is informed when the health care provider gives the patient the information the patient needs to make the right choice.

The Effect of a Lack of Capacity

If a person does not meet the requisite mental capacity requirements when he or she enters into a legal arrangement, the arrangement and its supporting documents are generally void and unenforceable. Third parties can challenge these documents if they believed the person lacked capacity when the documents were signed. For a will, that means bringing a contest during the probate process.

Read More:
  • Michael H. Wald, The Ethics of Capacity, 77 Tex. B.J. 975 (2014).
  • Rudersdorf v. Bowers, 112 SW2d 784, 789 (Tex. Civ. App.—Galveston, 1938).
  • Tieken v. Midwestern State Univ., 912 SW2d 878, 882 (Tex. App.—Fort Worth, 1995).

Catherine Parsley was an intern at Farrow-Gillespie Heath Witter, LLP in 2017. Catherine served as a judicial extern for Chief Justice Nathan L. Hecht, of the Supreme Court of Texas.  She holds a B.S. in communications studies, cum laude, from the University of Texas at Austin.

Christian Kelso | Farrow-Gillespie & Heath LLP | Dallas, TX

Christian S. Kelso, Esq. is a partner at Farrow-Gillespie Heath Witter LLP. He draws on both personal and professional experience when counseling clients on issues related to estate planning, wealth preservation and transfer, probate, tax, and transactional corporate law. He earned a J.D. and LL.M. in taxation from SMU Dedman School of Law.

Estate Planning | Farrow-Gillespie & Heath LLP | Dallas, TX

Do I Need a Will?

One of the most common misunderstandings about estate planning is the belief that it is only for the wealthy. Anyone who owns property of any kind has an estate. Basic estate planning is an important component of an organized and responsible life, whether or not your estate is large enough to be subject to federal estate taxes. If you own any property, or have minor children, you should have a Will. Estate planning includes more than just a Will, however. It includes planning for potential disability during your lifetime, designating trusted individuals as medical and/or financial agents with power of attorney, designating a guardian to take care of your minor children in the event both you and your spouse die or become incapacitated, and other critical decisions. For those reasons, we include an entire package of the basic estate planning documents with your Last Will and Testament.

See list of basic estate planning documents.

Many people (as much as half of the population) will experience a period of either physical or mental disability before their death. Lack of planning can make caring for a disabled individual expensive and inconvenient for the caregiver. Good planning preserves a person’s dignity, as well as his or her assets, which can be used for the person’s care and can be preserved to the full extent possible for the next generation. Your loved ones will be grateful to you for having your affairs in order.

Liza Farrow-GIllespie | Farrow-GIllespie & Heath LLP | Dallas, TX

Power of Attorney Liability

A person (“agent”) holding a power of attorney for another person (the “principal”) must act with the utmost degree of loyalty to the principal. The agent must avoid being involved in any transaction which benefits, or even which potentially benefits, the agent.

That rule of law was enforced once again in 2015 by the Texas courts in Jordan v. Lyles, No. 12-13-0035-CV, 2015 WL 393791 (Tex. App.–Tyler 2015, no pet. h.).

In that case, the agent used her power of attorney to place a significant portion of the principal’s money into pay-on-death accounts naming the agent as the beneficiary. At the principal’s death, the principal’s other heirs sued the agent for breach of fiduciary duty for moving the money and receiving it at the principal’s death. A Tyler jury found in favor of the heirs, and held the agent liable for breach of fiduciary duty and tortious interference with inheritance rights. The appellate court affirmed the jury’s verdict.

The moral to agents is this: If you conduct or participate in a transaction for the principal that benefits you personally, obtain bulletproof evidence that the principal instructed you to do so. If the principal has lost capacity, it is too late; and unless you obtain the advance approval of all beneficiaries under the principal’s will (or all heirs at law if the principal has no will or has a questionable will), you simply may not do anything with the principal’s property during the remainder of the principal’s lifetime that would be to your benefit.