FortBend Lawyers Care

equal access to justice through volunteer lawyers

Adult Guardianship Policies and Procedures

Adult Guardianship

of the Person

Policies and Procedures

for Volunteer Lawyers

Edition 4

Distributed July 2008

Welcome, volunteer lawyer!

This manual is designed to assist volunteer lawyers with adult guardianship of the person cases referred to Fort Bend Lawyers Care (FBLC) from Brazos Bend Guardianship Services (BBGS).

The mission of FBLC is to provide low-income residents of FortBendCounty with equal access to justice through volunteer lawyers. You, the volunteer attorney, are key to the success of this program, and the quality of your pro bono experience is important to FBLC. If at any time during the pendency of a case you wish to speak to a more experienced attorney, please contact the executive director at FBLC, at , or (281) 239-0015. A mentor attorney will be identified and provided to you.

It is important to remember that even though your new client is a pro bono client, once you have accepted the case the client is yours the same as any of your paying clients, and all the elements of an attorney-client relationship apply.

Please understand that this policy and procedure manual is not designed to address every situation that might arise in a guardianship case. Only the typical procedures have been addressed. If you have an unusual case and you require specific guidance, please contact the executive director at FBLC, at , or (281) 239-0015.

Step 1: Identification

First, a potential client is identified as low-income, falling at or below the financial eligibility criteria established by FBLC, and requiring a guardianship over a disabled adult. Guardianships originating out of BBGS typically involved mentally disabled children who have just reached, or are about to reach, the age of majority. BBGS will qualify all potential clients for initial financial eligibility, and then submit the potential client’s application to FBLC for review. The potential client’s information is entered into FBLC’s case management software and FBLC conducts an initial conflicts check. Once FBLC confirms eligibility and finalizes the conflicts check, the case will move on to Step 2: Match.

Step 2:Match

Each guardianship case requires the volunteer efforts of two lawyers; one to represent the applicant and another to serve as attorney ad litem (subject to court approval.) The executive director or director of services at FBLC will contact you regarding accepting a pro bono case as the applicant attorney once the potential client has been qualified. This initial contact will happen via phone or email. FBLC will provide you with enough information in this initial contact to conduct an internal conflicts check.

Please respond to the executive director or director of services within 48 hours so FBLC can either confirm your match with the pro bono client or look for another volunteer lawyer.

The attorney ad litem will be coordinated through either the probate court or Brazos Bend Guardianship Services. FBLC will provide a list of attorneys who have completed the FBLC Guardianship Certification CLE to all County Court at Law judges, stating that the attorneys are willing to serve as Attorneys Ad Litem on a pro bono basis.

There is no way to know how much time a particular case is going to require. As you become familiar with the guardianship process, you will begin to have a feel for the amount of time a case will require to work through to completion.

Once you have accepted the pro bono client, the case moves on to Step 3: Making Contact.

Step 3: Making Contact

Once you accept a pro bono case, FBLC contacts BBGS to notify the program that the case has been matched, and gives the program director your contact information. You should engage in an open flow of case status information with the program director, Kirk Monroe, but be aware of the attorney-client privilege. Remember: only client communication is privileged, not the status of a case or other information that can be verified by an independent source.

Now the work begins, and there are a number of critical steps to complete. These steps have been included in check-list* format at the end of this manual; see Attachment A.

It is perfectly acceptable to require the families involved to actively participate in their case, including driving to your office to sign paperwork, or making phone calls to find family members who must be served, etc. If you are working with a family who does not have transportation, have them contact Fort Bend County Transit at 281-633-7433. This is a door-to-door service, charging $1.00 per person each way.

The following is a list of chronological steps designed to guide you through the adult guardianship process.

*Check lists are also available on our website,

For the Applicant Attorney:

  1. Review the Guardianship Assistance Application Packet (GAAP) and Potential Guardian Worksheet and Social History for completeness. This information will come to you directly from BBGS.
  2. In the majority of cases, the potential guardian will bring you the original Dr.’s Letter when they meet with you for the first time. If a doctor’s letter regarding incapacity is included with the paperwork from BBGS, check the letter for accuracy and a notary stamp. Doctor’s letters that are signed by a medical doctor must be filed with the Guardianship of the Person Application at the County Clerk’s Office within 120 days of signing(refer to TPC 687(a).) Doctor’s letters signed by a psychologist must be presented to the court within 24 months of signing(refer to TPC 687(c).) Because the cause of incapacity is mental retardation, a psychologist’s letter is usually preferred.
  3. Filing fees and court costs not waived by the court may be paid by BBGS. If BBGS is paying the filing fees, you will be given a letter by Kirk Monroe at BBGS giving you permission to charge the fees to an established Escrow Account. FortBend probate judges have agreed to waive filing fees in most cases (with supporting Affidavit of Indigency and IOLTA certificate) and have agreed to set the bond at $10.00, barring unusual circumstances. If Kirk is not able to be present at the hearing, you will be given $10 in cash to be used to pay the cash bond at the hearing. The guardianship liaison, Kirk Monroe, will coordinate with you to get money to you before the hearing date.
  1. Sign the BBGS / GAAP Attorney Agreement and return it to BBGS, along with a copy of your Guardianship Certification. The Attorney Agreement will be provided to you along with the GAAP and Guardian Worksheet, from BBGS.
  2. Via email:
  3. Via fax: 281-494-5928
  1. The potential guardian will contact you to schedule a time to meet. Remind them to bring the Doctor’s Letter with the Psychologist’s Affidavit Supporting Mental Status Exam attached, if it has not been given to you already.
  1. Prepare an Application for Appointment of Permanent Guardianship of the Person. Reminder: FBLC only handles Guardianship of the Person applications. Please do not complete an application for Guardianship of the Person and Estate. A sample Application can be found on our website, under Forms, Applicant Attorney.
  2. Website:
  1. Prepare an Affidavit of Indigency and an IOLTA Certificate using the financial information gathered by BBGS. A sample Affidavit of Indigency and IOLTA Cert can be found on our website, under Forms.
  2. Submit both the Affidavit of Indigency and IOLTA Certificate. All court costs and fees, as well as interpreter fees and service fees in Texas, should be waived and/or refunded. A party who is represented by an attorney who is providing free legal services, without contingency, because of the party’s indigency and the attorney is providing services either directly or by referral from a program funded by the Interest on Lawyers Trust Accounts (IOLTA) program, may file an IOLTA certificate confirming that the IOLTA-funded program screened the party for income eligibility under IOLTA-program income guidelines. A party’s affidavit of indigency accompanied by an attorneys IOTLA certificate creates a presumption of inability to pay court costs which, per the Texas Supreme Court, may not be contested by the sitting judge.
  3. The Affidavit of Indigency must contain the following:
  4. Complete information as to the party’s identity
  5. Nature and amount of governmental entitlement income
  6. Nature and amount of employment income
  7. Other income (interest, dividends, etc.)
  8. Spouse’s income if available to the party
  9. Property owned (other than homestead)
  10. Cash or checking account
  11. Dependants
  12. Debts
  13. And monthly expenses
  14. The Affidavit of Indigency must also contain the following statement: “I am unable to pay court costs. I verify that the statements made in this affidavit are true and correct.”
  15. a sample Affidavit of Indigency can be found on our website under Forms.
  16. For more information, see Tex. R. Civ. Pro. Amendment to Rule 145.
  17. A sample IOLTA certificate can be found on our website, also under Forms.
  18. Ask the potential guardian to enter into a written pro bono client agreement. A sample pro bono agreement can be found on our website, but if you prefer to use one of your own client agreements, please do so.
  19. Send a copy of the signed client agreement to FBLC
  20. Via email:
  21. Or via fax: (281) 239-8123
  22. FBLC will keep a copy in electronic format.
  1. If you have not done so already, obtain the original notarized doctor’s letter,with a Psychologist’s Affidavit Supporting Mental Status Exam attached, from the potential guardian. Check the letter for accuracy to reduce the risk of having to obtain another letter after it has been filed with the CountyClerk’s Office.
  1. Meet with potential guardian to make sure the guardian is qualified to serve as a guardian.
  2. This means the guardian:
  3. has no felony convictions;
  4. is not incapacitated;
  5. is not a party to a lawsuit concerning the proposed ward;
  6. is not indebted to the proposed ward;
  7. is not asserting a claim adverse to the proposed ward;
  8. is not a person who, because of experience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate.
  1. Explain to the proposed guardian his/her power and duties as a guardian:
  2. The right to physical possession and to establish domicile;
  3. The duty to care, control, and protect the ward;
  4. The duty to provide clothing, food, medical care, shelter to the ward;
  5. The power to consent to medical, psychiatric, and surgical treatment for the ward;
  6. the guardian may not voluntarily admit the ward to in-patient psychiatric care, but must seek court approval.
  1. Inform the proposed guardian that guardianship ends only with:
  2. The death of either ward or guardian;
  3. Resignation of the guardian;
  4. Removal of the guardian; or
  5. Restoration of the ward to capacity.
  1. Inform the proposed guardian that he/she will be responsible for completing all future annual reporting requirements. BBGS will send a reminder to the guardian one month before their guardianship anniversary date to complete the annual report. In June of 2007, all FortBendCounty probate judges decided that for FBLC program clients, they would waive the annual reporting filing fee of $25.00; however, a $2.00/year state fee will remain in effect.
  2. In general, make sure that the proposed guardian understands that guardianship is hard work and that guardians are held to a higher standard.
  3. If you discover in your interview that the proposed ward has assets in excess of $17,500.00 per year, refer the case back to FBLC for further investigation and financial qualification.
  1. Have the potential guardian notarize the Application for Appointment of Permanent Guardianship of the Person. Be sure to check the application for accuracyto reduce the risk of having to file amended applications.
  2. Director of Services at Fort Bend Lawyers CARE is a notary public and will provide notary service at no cost for FBLC clients.
  1. File the Guardianship Application along with the doctor’s letter. Make a copy of the original application before filing it with the CountyClerk’s Office because the CountyClerk’s Office charges a $1 a page to copy and this fee will not be covered by BBGS or FBLC. A sample application can be found on the FBLC website, under Forms.
  2. Make sure you have addresses for all parties involved: parents, siblings, spouses, and any person designated guardian of incapacitated child. Most courts will not proceed without addresses for all parties.
  3. Beginning Sept. 1, 2007, guardianship applications must specifically address whether the applicant is requesting the termination of the proposed ward’s right to 1) vote and 2) drive.
  1. NOTE: the proposed ward must be served as well, even if he/she is not capable of reading or comprehending the document. See § 633(d) (1) of the Probate Code for more information.
  1. Determine who needs to receive a Waiver of Notice and send the waivers.
  2. You should first try to send waivers through the postal service, using certified mail. BBGS will reimburse the cost of certified mail if you provide a receipt. Do not use the CountyClerk’s Office to send certified mail because they will charge $69.
  3. If this method fails, you should attempt to use a private service. The cost of service should not exceed $100.00.
  4. BBGS will cover the cost of service in most cases. Contact Kirk Monroe to discuss payment.
  5. email:
  6. Several sample forms are available on our website; Click on the Forms tab.
  7. They include:
  8. Letter to Brother and Sister re: Signature of Waivers
  9. Waiver of Service
  10. Waiver and Consents to Guardian
  1. Contact BBGS if you are unable to get a waiver returned as you may have to hire a private service company to serve the papers and BBGS may be able to pay for this expense.
  2. As a last resort, submit an Affidavit for Proof of Notice to the court. A sample affidavit can be found on our website, under Forms. See Probate Code §633 for more information.
  3. In some situations, you may have to publish the guardianship notice. If this becomes necessary, contact Kirk and ask him to send a letter to the Fort Bend County Clerk’s office giving you permission to charge the cost of publication to the BBGS account.
  4. Prepare and file an Affidavit of Notice stating that the required family members were served. See an example of this affidavit on the FBLC website, under Forms. Refer to §633(9) (1) of the Probate Code for more information.
  1. Complete and file both a Motion for Appointment of Attorney Ad Litem and an Order Appointing Attorney Ad Litem. It is the responsibility of the applicant attorney to file an application to appoint the ad litem. Make sure the Motion and Order both have the words “pro bono” in them; this information will remind the court to look for a pro bono lawyer versus appointing an attorney to be paid by the county. It is also wise to alert the court coordinator that this is a pro bono case (see paragraph 17(b) below for more info.) The name of the volunteer lawyer who has agreed to be AAL will be provided to you by BBGS, or the court will appoint an AAL. Either way, leave the attorney ad litem’s name blank on the Order,as the judges prefer to complete this portion themselves.

File both forms with the assigned County Court at Law Probate Auditor. At your request, the Probate Auditor will review your paperwork and give you feedback. We suggest that you walk the file through on your first case, to make personal contact with the Probate Auditor. This additional step will actually save you time as a volunteer attorney, because catching a potential problem early on will prevent last minute changes or corrections.

  1. When filing a Motion for Appointment of Attorney Ad Litem, FBLC has found that the best method for ensuring that the judge appoints the pro bono volunteer lawyer identified by BBGSis to speak directly to the court coordinator the judge’s office and explain that this case is being handled pro bono, then politely ask the judge to assign an attorney from the pro bono list of attorneys.

County Court contact information:

County Court at Law #1, Judge Childers

Court Coordinator: Regina Green

Phone: 281-633-7415

Probate Auditor: Lynelle Eximann

Phone: 281-633-7413

County Court at Law #2, Judge McMeans

Court Coordinator: Virginia Rosas

Phone: 281-341-4446

Probate Auditor: Rita Miller

Phone: 281-341-4443

County Court at Law #3: Judge Lowery

Court Coordinator: Sandy Hickman

Phone: 281-341-4430

Probate Auditor: Benny Charles

Phone: 281-344-3912

County Court at Law #4: Judge Bielstein

Court Coordinator: Esther Ramirez

Phone: 281-341-4501

Probate Auditor: Jenica Salazar

Phone: 281-238-3297

Local rules of court can be found at the official court website,

b.It is helpful to include the following language, in bold print, in the application as well as the motion, explaining exactly what is being requested: "Applicant Attorney understands that Brazos Bend Guardianship Services (BBGS) has arranged for <Name of Volunteer Laywer> to serve as attorney ad litem. Applicant's attorney is a member of FBLC and is providing legal services in this matter on a Pro Bono basis and respectfully requests that the Court appoint <Name of Volunteer Lawyer> as the Attorney Ad Litem,who is also willing to serve on a Pro Bono basis." A sample application with this language can be found on FBLC’s website. Click on the “Forms” tab located on the left hand side of the page.