The Texas Legislature has once again updated the Texas Probate Code, which governs all Guardianship proceedings in the State of Texas, to reflect the realities of life. The determination of whether an individual is incapacitated is not always black and white. Many individuals potentially subject to a guardianship retain many of their abilities. One such ability is the right to contract.
At the beginning of every guardianship case, the Court is required to appoint an attorney (known as an Attorney Ad Litem) for the potentially incapacitated person. In the past, the Probate Code did not provide a mechanism for the potential Ward to choose their own attorney.
However, new Probate Code Section 646A allows Wards or Proposed Wards to retain their own attorney instead of having the Court appoint an attorney for them. This ability is subject to the Ward or the Proposed Ward having the capacity and power to enter into a contract.
A Ward must retain the power to contract under the terms of the current guardianship in order to hire a private attorney instead of allowing the Court to appoint an Attorney Ad Litem. A Proposed Ward may hire a private attorney during the proceeding to appoint a Guardian as long as the Proposed Ward has capacity to contract.
When the Ward or Proposed Ward hires their own attorney, the attorney must hold the same certification requirements as an attorney who is eligible to be appointed as an Attorney Ad Litem. If the attorney is certified by the State of Texas to serve as an Attorney Ad Litem, then he or she is free to serve as private counsel to a Ward or Proposed Ward instead of a Court-appointed Ad Litem.
These changes to the Probate Code allow individuals with the power to contract to retain their own private counsel, to represent their interests in the guardianship proceeding. This allows Wards and Proposed Wards to have a greater voice and decision-making power in the process of appointing a Guardian over their person and financial assets.