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Resignation, Removal or Death of Guardian - Texas Guardianship Law

Texas Guardianship Law
RESIGNATION, REMOVAL, OR DEATH OF GUARDIAN; APPOINTMENT OF SUCCESSOR

TEXAS ESTATES CODE, TITLE 3. SUBTITLE F. CHAPTER 1203.

RESIGNATION OF GUARDIAN

Sec. 1203.001. RESIGNATION APPLICATION.

A guardian of the estate or guardian of the person who wishes to resign the guardian's trust shall file a written application with the court clerk, accompanied by:

(1) in the case of a guardian of the estate, a complete and verified exhibit and final account showing the true condition of the guardianship estate entrusted to the guardian's care; or

(2) in the case of a guardian of the person, a verified report containing the information required in the annual report required under Subchapter C, Chapter 1163, showing the condition of the ward entrusted to the guardian's care.

Sec. 1203.002. IMMEDIATE ACCEPTANCE OF RESIGNATION; DISCHARGE AND RELEASE.

(a) If the necessity exists, the court may immediately accept the resignation of a guardian and appoint a successor guardian as provided by Section 1203.102(b).

(b) The court may not discharge a person resigning as guardian of the estate whose resignation is accepted under Subsection (a), or release the person or the sureties on the person's bond, until a final order has been issued, or a final judgment has been rendered, on the final account required under Section 1203.001.

Sec. 1203.003. DELIVERY OF ESTATE PROPERTY TO SUCCESSOR GUARDIAN FOLLOWING RESIGNATION.

The court at any time may order a resigning guardian who has any part of a ward's estate to deliver any part of the estate to a person who has been appointed and has qualified as successor guardian.

Sec. 1203.004. HEARING DATE; CITATION.

(a) When an application to resign as guardian is filed under Section 1203.001, supported by the exhibit and final account or report required under that section, the court clerk shall bring the application to the judge's attention and the judge shall set a date for a hearing on the matter.

(b) After a hearing is set under Subsection (a), the clerk shall issue a citation to all interested persons, showing:

(1) that an application that complies with Section 1203.001 has been filed; and

(2) the time and place set for the hearing at which the interested persons may appear and contest the exhibit and final account or report supporting the application.

(c) Unless the court directs that the citation under Subsection (b) be published, the citation must be posted.

Sec. 1203.005. HEARING.

(a) At the time set for the hearing under Section 1203.004, unless the court continues the hearing, and if the court finds that the citation required under that section has been properly issued and served, the court shall:

(1) examine the exhibit and final account or report required by Section 1203.001;

(2) hear all evidence for and against the exhibit, final account, or report; and

(3) if necessary, restate and audit and settle the exhibit, final account, or report.

(b) If the court is satisfied that the matters entrusted to the guardian applying to resign have been handled and accounted for in accordance with the law, the court shall:

(1) enter an order approving the exhibit and final account or report; and

(2) require that any estate property remaining in the applicant's possession be delivered to the person entitled by law to receive the property.

(c) A guardian of the person shall comply with all court orders concerning the guardian's ward.

Sec. 1203.006. REQUIREMENTS FOR DISCHARGE.

(a) A guardian applying to resign may not be discharged until:

(1) the resignation application has been heard;

(2) the exhibit and final account or report required under Section 1203.001 has been examined, settled, and approved; and

(3) the applicant has satisfied the court that the applicant has:

(A) delivered any estate property remaining in the applicant's possession; or

(B) complied with all court orders relating to the applicant's trust as guardian.

(b) When a guardian applying to resign has fully complied with the court orders, the court shall enter an order:

(1) accepting the resignation; and

(2) discharging the applicant and, if the applicant is under bond, the applicant's sureties.

REMOVAL AND REINSTATEMENT OF GUARDIAN

Sec. 1203.051. REMOVAL WITHOUT NOTICE; APPOINTMENT OF GUARDIAN AD LITEM AND ATTORNEY AD LITEM.

(a) The court, on the court's own motion or on the motion of an interested person, including the ward, and without notice, may remove a guardian appointed under this title who:

(1) neglects to qualify in the manner and time required by law;

(2) fails to return, not later than the 30th day after the date the guardian qualifies, an inventory of the guardianship estate property and a list of claims that have come to the guardian's knowledge, unless that deadline is extended by court order;

(3) if required, fails to give a new bond within the period prescribed;

(4) is absent from the state for a consecutive period of three or more months without the court's permission, or removes from the state;

(5) cannot be served with notices or other processes because:

(A) the guardian's whereabouts are unknown;

(B) the guardian is eluding service; or

(C) the guardian is a nonresident of this state who does not have a resident agent to accept service of process in any guardianship proceeding or other matter relating to the guardianship;

(6) subject to Section 1203.056(a):

(A) has misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state, any of the property entrusted to the guardian's care; or

(B) has engaged in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Section 48.002, Human Resources Code, if engaged in with respect to an elderly or disabled person, as defined by that section; or

(7) has neglected to educate or maintain the ward as liberally as the means of the ward and the condition of the ward's estate permit.

(b) In a proceeding to remove a guardian under Subsection (a)(6) or (7), the court shall appoint a guardian ad litem as provided by Subchapter B, Chapter 1054, and an attorney ad litem. The attorney ad litem has the duties prescribed by Section 1054.004. In the interest of judicial economy, the court may appoint the same person as guardian ad litem and attorney ad litem unless a conflict exists between the interests to be represented by the guardian ad litem and attorney ad litem.

Sec. 1203.052. REMOVAL WITH NOTICE.

(a) The court may remove a guardian as provided by Subsection (a-1) if:

(1) sufficient grounds appear to support a belief that the guardian has misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state, any of the property entrusted to the guardian's care;

(2) the guardian fails to return any account or report that is required by law to be made;

(3) the guardian fails to obey a proper order of the court that has jurisdiction with respect to the performance of the guardian's duties;

(4) the guardian is proved to have been guilty of gross misconduct or mismanagement in the performance of the guardian's duties;

(5) the guardian:

(A) becomes incapacitated;

(B) is sentenced to the penitentiary; or

(C) from any other cause, becomes incapable of properly performing the duties of the guardian's trust;

(6) the guardian has engaged in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Section 48.002, Human Resources Code, if engaged in with respect to an elderly or disabled person, as defined by that section;

(7) the guardian neglects to educate or maintain the ward as liberally as the means of the ward's estate and the ward's ability or condition permit;

(8) the guardian interferes with the ward's progress or participation in programs in the community;

(9) the guardian fails to comply with the requirements of Subchapter G, Chapter 1104;

(10) the court determines that, because of the dissolution of the joint guardians' marriage, the termination of the guardians' joint appointment and the continuation of only one of the joint guardians as the sole guardian is in the best interest of the ward; or

(11) the guardian would be ineligible for appointment as a guardian under Subchapter H, Chapter 1104.

(a-1) The court may remove a guardian for a reason listed in Subsection (a) on the:

(1) court's own motion, after the guardian has been notified, by certified mail, return receipt requested, to answer at a time and place set in the notice; or

(2) complaint of an interested person, after the guardian has been cited by personal service to answer at a time and place set in the notice.

(b) In addition to the authority granted to the court under Subsection (a), the court may, on the complaint of the guardianship certification program of the Judicial Branch Certification Commission, remove a guardian who would be ineligible for appointment under Subchapter H, Chapter 1104, because of the guardian's failure to maintain the certification required under Subchapter F, Chapter 1104. The guardian shall be cited to appear and contest the request for removal under this subsection in the manner provided by Subsection (a).

 

Sec. 1203.053. REMOVAL ORDER.

An order removing a guardian shall:

(1) state the cause of the removal;

(2) require that, if the removed guardian has been personally served with citation, any letters of guardianship issued to the removed guardian be surrendered and that, regardless of whether the letters have been delivered, all the letters be canceled of record; and

(3) require the removed guardian to:

(A) deliver any estate property in the guardian's possession to the persons entitled to the property or to one who has been appointed and has qualified as successor guardian; and

(B) relinquish control of the ward's person as required in the order.

Sec. 1203.0531. NOTICE OF REMOVAL ORDER.

The court clerk shall issue notice of an order rendered by the court removing a guardian under Section 1203.051(a)(1), (2), (3), (4), (6), or (7). The notice must:

(1) state the names of the ward and the removed guardian;

(2) state the date the court signed the order of removal;

(3) contain the following statement printed in 12-point bold font:

"If you have been removed from serving as guardian under Section 1203.051(a)(6)(A) or (B), Estates Code, you have the right to contest the order of removal by filing an application with the court for a hearing under Section 1203.056, Estates Code, to determine whether you should be reinstated as guardian. The application must be filed not later than the 30th day after the date the court signed the order of removal.";

(4) contain as an attachment a copy of the order of removal; and

(5) be personally served on the removed guardian not later than the seventh day after the date the court signed the order of removal.

Sec. 1203.054. DISCHARGE AND RELEASE FOLLOWING REMOVAL.

With respect to a person who is removed as guardian of the estate and whose successor is appointed without citation or notice as provided by Section 1203.102(b), the court may not discharge the person or release the person or the sureties on the person's bond until a final order has been issued or final judgment has been rendered on the guardian's final account.

Sec. 1203.055. DELIVERY OF ESTATE PROPERTY TO SUCCESSOR GUARDIAN FOLLOWING REMOVAL.

The court at any time may order a person removed as guardian under this subchapter who has any part of a ward's estate to deliver any part of the estate to a person who has been appointed and has qualified as successor guardian.

Sec. 1203.056. REMOVAL AND REINSTATEMENT OF GUARDIAN UNDER CERTAIN CIRCUMSTANCES.

(a) The court may remove a guardian under Section 1203.051(a)(6)(A) or (B) only on the presentation of clear and convincing evidence given under oath.

(b) Not later than the 30th day after the date the court signs the order of removal, a guardian who is removed under Section 1203.051(a)(6)(A) or (B) may file an application with the court for a hearing to determine whether the guardian should be reinstated.

(c) On the filing of an application under Subsection (b), the court clerk shall issue to the applicant, the ward, a person interested in the ward's welfare or estate, and, if applicable, a person who has control of the care and custody of the ward a notice stating:

(1) that an application for reinstatement has been filed;

(2) the name of the ward; and

(3) the name of the applicant for reinstatement.

(d) The notice required by Subsection (c) must cite all persons interested in the ward's welfare or estate to appear at the time and place stated in the notice if the persons wish to contest the application.

(e) The court shall hold a hearing on an application for reinstatement under this section as soon as practicable after the application is filed, but not later than the 60th day after the date the court signed the order of removal. If, at the conclusion of the hearing, the court is satisfied by a preponderance of the evidence that the applicant did not engage in the conduct that directly led to the applicant's removal, the court shall:

(1) set aside any order appointing a successor guardian; and

(2) enter an order reinstating the applicant as guardian of the ward or estate.

(f) If the court sets aside the appointment of a successor guardian under this section, the court may require the successor guardian to prepare and file, under oath, an accounting of the estate and to detail the disposition the successor has made of the estate property.

Sec. 1203.057. REMOVAL OF JOINT GUARDIAN.

If a joint guardian is removed under Section 1203.052(a)(10), the other joint guardian is entitled to continue to serve as the sole guardian unless removed for a reason other than the dissolution of the joint guardians' marriage.

APPOINTMENT OF SUCCESSOR GUARDIAN; REVOCATION OF LETTERS

Sec. 1203.101. REQUIREMENTS FOR REVOCATION OF LETTERS.

Except as otherwise expressly provided by this title, letters of guardianship may be revoked only:

(1) on application; and

(2) after personal service of citation on the person whose letters are sought to be revoked requiring the person to appear and show cause why the application should not be granted.

Sec. 1203.102. APPOINTMENT BECAUSE OF RESIGNATION, REMOVAL, OR DEATH; HEARING TO SET ASIDE IMMEDIATE APPOINTMENT.

(a) If a guardian resigns, is removed, or dies, the court may appoint a successor guardian on application and on service of notice as directed by the court, except as provided by Subsection (b). In the event the guardian of the person or of the estate of a ward dies, a personal representative of the deceased guardian, at the time and in the manner ordered by the court, shall account for, pay, and deliver all guardianship property entrusted to the representative's care to a person legally entitled to receive the property.

(b) The court may appoint a successor guardian under this section without citation or notice if the court finds that a necessity exists for the immediate appointment. Subject to an order of the court, a successor guardian has the rights and powers of the removed guardian.

(c) The appointment of a successor guardian under Subsection (b) does not preclude an interested person from filing an application to be appointed guardian of the ward for whom the successor guardian was appointed. The court shall hold a hearing on an application filed under the circumstances described by this subsection. At the conclusion of the hearing, the court may set aside the appointment of the successor guardian and appoint the applicant as the ward's guardian if the applicant is not disqualified and after considering the requirements of Subchapter B or C, Chapter 1104, as applicable.

(d) If the court sets aside the appointment of the successor guardian under this section, the court may require the successor guardian to prepare and file, under oath, an accounting of the estate and to detail the disposition the successor has made of the estate property.

Sec. 1203.103. APPOINTMENT BECAUSE OF EXISTENCE OF PRIOR RIGHT.

If letters of guardianship have been granted to a person and another person applies for letters, the previously issued letters shall be revoked, and letters shall be granted to the subsequent applicant if that applicant:

(1) is qualified;

(2) has a prior right to be appointed successor guardian; and

(3) has not waived that prior right.

Sec. 1203.104. APPOINTMENT WHEN GUARDIAN NAMED IN WILL BECOMES AN ADULT.

(a) A person named as guardian in a will who was not an adult when the will was probated is entitled to have letters of guardianship that were granted to another person revoked and appropriate letters granted to the named guardian on proof that the named guardian has become an adult and is not otherwise disqualified from serving as a guardian.

(b) This subsection applies only if a will names two or more persons as guardian. A person named as a guardian in the will who was a minor when the will was probated may, on becoming an adult, qualify and receive letters of guardianship if:

(1) letters have been issued to the named guardians in the will who are adults; and

(2) the person is not otherwise disqualified from receiving letters.

Sec. 1203.105. APPOINTMENT OF FORMERLY ILL OR ABSENT GUARDIAN NAMED IN WILL.

(a) This section applies only to a person named as guardian in a will who was ill or absent from the state when the testator died or the will was proved and, as a result, could not:

(1) present the will for probate not later than the 30th day after the testator's death; or

(2) accept and qualify as guardian not later than the 20th day after the date the will was probated.

(b) A person to whom this section applies may accept and qualify as guardian not later than the 60th day after the date the person recovers from illness or returns to the state if proof is presented to the court that the person was ill or absent.

(c) If a person accepts and qualifies as guardian under Subsection (b) and letters of guardianship have been issued to another person, the other person's letters shall be revoked.

Sec. 1203.106. APPOINTMENT WHEN WILL DISCOVERED AFTER GRANT OF LETTERS.

If, after letters of guardianship have been issued, it is discovered that the decedent left a lawful will, the letters shall be revoked and proper letters shall be issued to a person entitled to the letters.

Sec. 1203.107. APPOINTMENT ON REMOVAL OF LITIGATION CONFLICT.

The court may appoint as successor guardian a spouse, parent, or child of a proposed ward who was disqualified from serving as guardian because of a litigation conflict under Section 1104.354(1) on the removal of the conflict that caused the disqualification if the spouse, parent, or child is otherwise qualified to serve as a guardian.

Sec. 1203.108. APPOINTMENT OF DEPARTMENT OF AGING AND DISABILITY SERVICES AS SUCCESSOR GUARDIAN.

(a) In this section, "department" means the Department of Aging and Disability Services.

(b) The court may appoint the department as a successor guardian of the person or estate, or both, of a ward who has been adjudicated as totally incapacitated if:

(1) there is no less-restrictive alternative to continuation of the guardianship;

(2) there is no family member or other suitable person, including a guardianship program, willing and able to serve as the ward's successor guardian;

(3) the ward is located more than 100 miles from the court that created the guardianship;

(4) the ward has private assets or access to government benefits to pay for the ward's needs;

(5) the department is served with citation and a hearing is held regarding the department's appointment as proposed successor guardian; and

(6) the appointment of the department does not violate a limitation imposed by Subsection (c).

(c) The number of appointments under Subsection (b) is subject to an annual limit of 55. The appointments must be distributed equally or as equally as possible among the health and human services regions of this state. The department, at the department's discretion, may establish a different distribution scheme to promote the efficient use and administration of resources.

(d) If the department is named as a proposed successor guardian in an application in which the department is not the applicant, citation must be issued and served on the department as provided by Section 1051.103(5).

SUCCESSOR GUARDIANS FOR WARDS OF GUARDIANSHIP PROGRAMS OR GOVERNMENTAL ENTITIES

Sec. 1203.151. NOTICE OF AVAILABILITY OF SUCCESSOR GUARDIAN.

(a) If a guardianship program or governmental entity serving as a guardian for a ward under this title becomes aware of a family member or friend of the ward, or any other interested person, who is willing and able to serve as the ward's successor guardian, the program or entity shall notify the court in which the guardianship is pending of the individual's willingness and ability to serve.

(b) If, while serving as a guardian for a ward under this title, the Department of Aging and Disability Services becomes aware of a guardianship program or private professional guardian willing and able to serve as the ward's successor guardian, and the department is not aware of a family member or friend of the ward, or any other interested person, who is willing and able to serve in that capacity, the department shall notify the court in which the guardianship is pending of the guardianship program's or private professional guardian's willingness and ability to serve.

Sec. 1203.152. DETERMINATION OF PROPOSED SUCCESSOR GUARDIAN'S QUALIFICATION TO SERVE.

When the court is notified of the existence of a proposed successor guardian under Section 1203.151(a), or the court otherwise becomes aware of a family member, a friend, or any other interested person who is willing and able to serve as a successor guardian for a ward of a guardianship program or governmental entity, the court shall determine whether the proposed successor guardian is qualified to serve under this title as the ward's successor guardian.

Sec. 1203.153. APPLICATION TO APPOINT SUCCESSOR GUARDIAN.

(a) If the court finds under Section 1203.152 that the proposed successor guardian for a ward is not disqualified from being appointed as the ward's successor guardian under Subchapter H, Chapter 1104, and that the appointment is in the ward's best interests, the guardianship program or governmental entity serving as the ward's guardian or the court, on the court's own motion, may file an application to appoint the individual as the ward's successor guardian.

(b) Service of notice on an application filed under this section shall be made as directed by the court.

PROCEDURES AFTER RESIGNATION, REMOVAL, OR DEATH OF GUARDIAN

Sec. 1203.201. PAYMENT TO WARD WHILE OFFICE OF GUARDIAN IS VACANT.

(a) A debtor, obligor, or payor may pay or tender money or another thing of value falling due to a ward while the office of guardian is vacant to the court clerk for the credit of the ward.

(b) Payment or tender under Subsection (a) discharges the debtor, obligor, or payor of the obligation for all purposes to the extent and purpose of the payment or tender.

(c) The court clerk shall issue a receipt for any payment or tender accepted under this section.

Sec. 1203.202. RIGHTS, POWERS, AND DUTIES OF SUCCESSOR GUARDIAN.

(a) A successor guardian has the rights and powers and is subject to all the duties of the predecessor.

(b) A guardian who accepts appointment and qualifies after letters of guardianship have been granted on the estate shall:

(1) succeed in like manner to the predecessor; and

(2) administer the estate in like manner as if the guardian's administration were a continuation of the former administration.

(c) A successor guardian may:

(1) make himself or herself, and be made, a party to a suit prosecuted by or against the successor's predecessor;

(2) settle with the predecessor and receive and give a receipt for any portion of the estate property that remains in the predecessor's possession; or

(3) commence a suit on the bond or bonds of the predecessor, in the successor's own name and capacity, for all the estate property that:

(A) came into the predecessor's possession; and

(B) has not been accounted for by the predecessor.

Sec. 1203.203. SUCCESSOR GUARDIAN TO RETURN INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS.

(a) A successor guardian who has qualified to succeed a former guardian shall, in the manner required of an original appointee:

(1) make and return to the court an inventory, appraisement, and list of claims of the estate not later than the 30th day after the date the successor qualifies; and

(2) return additional inventories, appraisements, and lists of claims.

(b) On the application of any person interested in the estate, the court shall, in an order appointing a successor guardian, appoint an appraiser as in an original appointment of a guardian.

Questions?  Call us now to speak with an experienced guardianship attorney. 

 (469) 630-2550