Duties of the Attorney Ad Litem
An attorney ad litem is appointed by the court to represent and advocate on behalf of a proposed ward or an incapacitated person in a guardianship proceeding.
Before the hearing, the AAL interviews the proposed ward and reviews the application, medical certificates, and other pertinent information available concerning the capacity of the proposed ward.
The AAL discusses with the proposed ward, if possible, the law and facts of the case, the proposed ward’s legal options regarding disposition of the case, and the grounds on which the guardianship is sought.
If appropriate, the AAL files a contest to the guardianship. The AAL assures that the proposed ward has been served with proper notice, interviews the family and doctors and guarantees that no conflict of interest exists between the proposed guardian and ward.
The AAL represents the proposed incapacitated individual until the guardianship is granted, denied or the attorney is discharged by court order.
Certification by the State Bar of Texas is required in order to serve as an AAL. Certification is based on successful completion of a course of study.
Duties of the Guardian Ad Litem
The guardian ad litem (GAL) is an officer of the court but is not necessarily an attorney. His or her duty is not to offer legal advice but to advocate for the best interest of the incapacitated person in a manner that will enable the court to determine what action will be the least restrictive for the proposed ward.
A GAL is not always appointed in guardianship proceedings and is only utilized when the court has reason to believe their services would be beneficial in determining the best interest of the proposed ward.
Expenses of Guardianship
Expenses associated with creating a guardianship include:
filing and service of process fees charged by the County Clerk
- fees charged by the applicant’s attorney
- the attorney ad litem’s fees
- medical examination costs, and
- bond premiums.
These expenses may be paid out of the ward’s estate if the judge creates a guardianship.
In cases of a contested guardianship where no guardianship is created because the court finds the proposed ward has full capacity, the applicant may not be reimbursed by the proposed ward’s estate for funds spent on costs and attorneys fees.
In cases where the proposed ward is indigent, some or most of the court expenses may be paid out of the funds of the county in which the alleged incapacitated person resides. The filing fees may vary from county to county, but in almost every case there will be charges associated with creating a guardianship.
Court Initiated Guardianship
The guardianship process may also be initiated when the court is notified by an individual or agency that a resident of the county over which the court has jurisdiction appears to be incapacitated and is experiencing abuse, neglect (including self-neglect), or exploitation and is in need of a guardian to remedy the situation. If the court finds probable cause that the person is an incapacitated person and does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate the situation.
The court investigator or guardian ad litem reviews the complaint and determines if a guardianship is the least restrictive alternative to protect the interests of the alleged incapacitated person. If guardianship appears appropriate, the court investigator or guardian ad litem files their report and causes an application for guardianship to be filed. Upon the filing of the application, an attorney ad litem (AAL) is appointed by the court to advocate for the desires of the alleged incapacitated individual.
Temporary guardianship gives the guardian the power to act for thirty to sixty days, or less if the court determines that the guardian can complete his or her duties in less time. This action is reserved for critical situations when there is imminent danger to the person or property of the individual in need of the temporary guardianship (the “respondent”). The court may appoint a temporary guardian when it is presented with substantial evidence that a person may be incapacitated and the court has probable cause to believe that the person or that person’s estate requires the immediate appointment of a guardian.
The temporary guardian’s powers are limited to those requested of and granted by the court. A person for whom a temporary guardian is appointed is not presumed to be incapacitated and retains all rights and powers that are not specifically granted to the temporary guardian. If a permanent guardianship is not in place at the time the temporary guardianship expires, then the respondent regains all rights taken away with the temporary guardianship.