Transcript

Adriane Grace: When a parent dies, it’s best to use the guardianship process as opposed to the conservatorship process because more likely than not there is going to be an estate from the deceased parents.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we are excited to welcome Adriane Grace to the Texas Family Law Insiders podcast. Adriane is the managing partner at the estate law firm of Loveland Grace Hurley, PLLC in Frisco, Texas. Her practice focuses on guardianship, estate planning, probate and trusts and estate administration. She handles both contested and uncontested probate and guardianship matters, and is appointed in the Dallas and Collin County probate court to serve as an ad litem.

Prior to her career in private practice, Adriane was an appellate attorney for the Social Security Administration, where she gained extensive knowledge and experience with social security rules and procedures that she regularly applies in her guardianship practice. Adriane considers herself a mental health and disability advocate, and enjoys counseling and advocating for caregivers, supporters and families of minor children and disabled individuals seeking both community based resources and legal solutions. Thank you so much for joining us today, Adriane.

Adriane: Thank you for having me.

Holly: Can you tell us just a little bit about your background?

Adriane: Sure. So I went to law school in Washington, DC. And I graduated and well over a decade ago, right. But basically, what we were educated to train in DC is to practice regulatory and administrative law. So I ended up going into the federal government coming out of law school and working for the Social Security Administration primarily on disability cases. At some point, my husband transferred jobs and we moved back here to Texas and I wasn’t sure how was I was like, going to apply my knowledge to a Texas practice, because it was very federal regulatory centered, and I started taking some CLEs on estate planning probate.

Guardianship is an area of law that’s heard in the probate courts, they have exclusive jurisdiction over that issue. And I felt like it was a practice area where I could take my knowledge about disability and apply it. Since we primarily use guardianship to assist caregivers and supporters of individuals who are so disabled, they, they can’t care for themselves and their property. So it was a good segue for me to pick up the guardianship practice with my extensive medical knowledge.

Holly: So today, we are here to talk about guardianship which has an interesting ties to conservatorship and family law cases. So what exactly is guardianship of a minor child?

Adriane: So when it comes to guardianship and a minor child, we’re usually talking about it in the context of a parent who has passed away. And we’re trying to find or put somebody in the place of the caregiver for that minor child who’s lost a parent, and also to collect an inheritance from the deceased parent and manage that inheritance.

Holly: Are there certain situations when family law attorneys should be referring clients to guardianship attorneys, rather than going forward with sapcr or proceeding for conservatorship?

Adriane: Absolutely, I believe that when a parent dies, it’s best to use the guardianship process as opposed to the conservatorship process because more likely than not there is going to be an estate from the deceased parents. So you know, property, assets, bank account, money in such that needs to be collected, and children are the natural heirs of a parent who passes away. So it makes sense to combine those two needs the need to collect the inheritance and figure out how to manage it and administer it, and the need to appoint someone in the caregiving role for the child whose parent has passed away. So I definitely think that combining those two proceedings are good. It allows oversight into all of the issues that the child is facing when a parent passes away.

Holly: So you mentioned having a guardian to take care of the child, not just deal with the estate. So if we still have one living parent, is that still something that can or should be happening in the probate court through a guardianship proceeding?

Adriane: Well, it depends on what’s going on with the surviving parent. So if the surviving parent is already in the child’s life and is already an appointed conservator of the child right through sasser, it doesn’t make sense to do a guardianship because the state’s code says that a parent is the natural guardian of the person of the child. And so in guardianship, we actually have two pieces, we’ve got guardian of the person, which is the caregiving role I alluded to and guardian of the estate, which is the management administration of any inheritance from a deceased parent.

So in the case of a surviving parent that’s been involved in their child’s life, and they haven’t had any legal restrictions placed on their parenting role. They’re going to be the natural guardian of the person. And all that they would need to do is apply to become guardian of the estate to manage that inheritance. But let’s say we have a parent who is in the wind right and hasn’t been very involved in the child’s life. Maybe they’re not even a managing conservator, due to issues they’ve had in their life.

We have definitely done guardianships, for other caregivers, family members, to allow them to step into that parenting role, because even when there’s a surviving parent, because that other, that surviving parent hasn’t been part of that child’s life, or may have had some of their rights removed in the family court. So we’ve definitely used guardianship in those situations as well.

Holly: So when there is a prior order from the family court, and one of the parents has died, doesn’t that court retain continuing exclusive jurisdiction to deal with conservatorship? And how could you then have a guardianship proceeding that might conflict with that?

Adriane: Yeah, that’s an interesting question. So I have a case where that issue is presented a bit because there is a family court with continuing exclusive jurisdiction, it isn’t unheard of to have a guardianship proceeding later after a family court case. And what we learned through that case is that the code in the family code in these states code isn’t entirely clear about that. So it does say that the family court has continuing exclusive jurisdiction, but an application for guardianship looks different than an application for conservatorship. So let’s say we go to the family court, I made that argument. We had a guardianship and there was a prior sapcr order and that is related to the child. And I said, hey, I think we’ve got a family court with continuing and exclusive jurisdiction, they might need to hear this issue because some of the things we’re doing in guardianship, which is giving rights to a legal guardian, or some of those rights have already been given to somebody in a sapcr order, right.

For example, the right to make healthcare decisions about your child. So we made that argument and the guardianship court said, probate court said, okay, well, let’s send it over to family court and see if they want to exercise jurisdiction. And so that question was presented to the family court, but it was on a guardianship application. Ultimately, the family court said, You know what, No, thanks. I don’t know anything about guardianship. So I think reading the family code in the state’s code, it’s not impossible to have a conservatorship, a prior conservatorship and a later guardianship. But I do think that it to have the two does create some ambiguity. And it would be great if the legislator would just clear that issue up between the two.

But as I said, in my prior example, it’s not likely a process to be used when there’s a surviving parent who is a managing conservator and is really involved in the child’s life, it’s more likely a process that’s going to be used where there’s a parent who probably hasn’t been exercising their parental rights, and has been neglectful and somebody is going to have to step in and take care of this child. And so, just like in conservatorships, the probate court and guardianship has to consider what’s in the best interest of the child. And obviously, it’s going to be in the best interest of the child to place them with the loving, supportive caregiver, then a natural parent who is has never exercised that role and has no relationship with the child.

Holly: Would you say it’s easier to obtain a guardianship than it is to obtain conservatorship?

Adriane: I’m not sure that it’s easier one way or the other. I’m not a family law attorney. So my knowledge of conservatorship and how easy or hard it is to obtain one is very limited. But I would say the requirements are different, especially as it concerns who has standing to file for guardianship and to be appointed, and some of the notice requirements as well, who who needs to be provided notice of a guardianship proceeding? Because that dictates who could contest the guardianship proceeding.

So whenever I have a potential client coming to me asking about guardianship, I really interview them about those kinship those family relationships and find out, you know, would these family members come out who are entitled to notice of this legal proceeding come out and contest? Or would they be willing to agree and sign a waiver? And so that makes a huge difference to whether we would go with a conservatorship versus a guardianship is, is the family supportive? Or the, you know, the kins the kinship relationships, you would have legal standing to apply to be a guardian and be appointed a guardian as the guardian. Are they in agreement with this legal proceeding?

Holly: So you mentioned standing, who has standing to file a guardianship proceeding?

Adriane: So the estate’s code says that its parents, and if there are no parents, surviving parents, then relatives related within the third degree of consanguinity. And that’s a legal terminology to describe relationships, but it’s basically the grandparents, great grandparents if they’re living, and then we look down to like across the parent level, aunts, uncles, siblings, and so it also says the person who’s in the nearest degree of relation to the child has priority. So a grandparent would have priority over let’s say, an aunt or an uncle or a great grandparent, if that makes sense.

Holly: So you and I have talked in the past about people trying to use the guardianship route to get around some of the restrictions or difficulties that a particular person might have in trying to get custody in a conservatorship suit. And one of the concerns that I have so obviously, you and I are both very familiar with the CJC case, and the constitutional rights of parents that were protected by that case. And it seems like if someone can file a guardianship proceeding, and seek basically custody through the guardianship court, instead of the conservatorship court, that the same law needs to apply in the guardianship proceeding, would you agree?

Adriane: I would agree with that. So what I described earlier as a technicality on how a person could file the application, the application for guardianship, and have standing to file. But whether that’s in the best interest of the child, I definitely think that those parental rights, those constitutional parental rights would have to be considered because, you know, you and I are very familiar with making that argument and CJC. And one of the tenants behind that argument or the public policy behind that argument is that a child is better off developmentally with their parent. And so the right of the child is subsumed within the right of the parent to keep the parent and the child together. And its course in the fit parent. Right? Has that right to determine what their child does? But then the right of the child is subsumed within that fit parents rights, correct? I’m kind of saying that correctly.

Holly: Yes, I would agree. So is there any situation where a relative can request guardianship of a child even if both parents are still alive?

Adriane: Again, I think that technically, they can file the application, if they were related within the third degree of consanguinity when the they could file to it is there’s the standing to be appointed guardian. But there’s also who can file an application and there’s no limit and under a guardianship laws as to who can file because the court is in the laws concerned with protecting an individual who is legally or mentally incapacitated. So anyone who has knowledge of someone needing protection can file an application for guardianship.

Who can be appointed who can ask to be appointed guardian, that’s a relative within the third degree of consanguinity. So technically, I believe a relative in that relation could have standing to apply. The question is, would it be in the best interest of the minor child to appoint someone who is not a parent, as the guardian of the child, if there is a living parent, that’s where I think the analysis is going to diverge from, can you do this versus, should you? Because if it’s not in the best interest, then you probably shouldn’t make that application.

Holly: Well, and, you know, with CJC, the Texas Supreme Court has said that the best it’s the parent who decides the best interest assuming that parent is fit. So, you know, I see I see kind of two layers of problems, one being relatives who would not have standing in a family lawsuit filing in a guardianship proceeding trying to essentially get custody that way. But also, will the guardianship courts view CJC and apply it in the guardianship context, just like it should be applied in the conservatorship context?

Adriane: I think so. I think they should. I watched your oral arguments and CJC. And that was definitely a question that came up with the justices was, you know, if this was one of constitutional dimensions, if it is, then it doesn’t matter what the legal proceeding is, that is a basic constitutional right that we have to protect. Just like we would protect a procedural due process, right, like a right to notice of a proceeding. We want to protect those other constitutional rights. I think parental rights is part of that substantive due process rights. And so it doesn’t matter what the legal proceeding is, because that is an issue of constitutional dimensions, the court will have to tread carefully and make sure they are not infringing on a parent’s constitutional right, whether it’s an in a conservatorship matter or a guardianship matter.

Holly: I think it’s interesting that guardianship allows basically any interested person to file an application, is that right?

Adriane: Basically, if you have personal knowledge, you can, of someone who’s in need of protection through a guardianship proceeding, you can file an application.

Holly: In CJC we based our arguments in largely on Troxel versus Granville. And that statute, it was for another state was from Washington, what sounds like was very similar to the guardianship standing statute, where the Washington state statute allowed any interested person to file for custody. Here, we’re allowing any interested person to file for guardianship or to, you know, have standing to file an application. So I think it’s an interesting constitutional argument somebody may need to make on the guardianship side someday, to protect the constitutional rights of parents on that side, just as they are being protected on the family side.

Adriane: I agree, I think that there’s possibility for that, especially these days, when we have a lot of grandparents who are heavily involved in children’s lives. And that’s CJC was a grand part, partly a grandparent case at first, but also non parents, right? We live in a very modern society, we don’t live as close to our family as we used to. And sometimes our networks and our community are non family, and non fam, like non kin, non, you know, blood relations. But sometimes we can have relationships that are just as close as a blood relation. And so I think that we’re going to probably see more people trying to make those arguments. And we’re going to have to weigh that against the rights, the constitutional rights of the parents, of course.

Holly: Yeah, the family code has made standing very difficult for relatives and grandparents. And they have sort of implemented that constitutional fit parent presumption into standing statutes by requiring a showing of significant impairment in order to even have standing to file suit in the first place. Does someone applying for guardianship have to show something akin to significant impairment to get anywhere?

Adriane: That’s not in the estate’s code. The estate’s code says the court is supposed to consider the best interest of the minor child or in the case of an incapacitated adult, the best interest of the ward. So I think what the clever argument will have to be since we don’t have a statutory framework for protecting parental rights is the argument I made previously which is, this is a constitutional right of the parent. But the the tenant of that is that it protects that parent-child relationship and so is it in the best interest of the child to interrupt or infringe that parent-child relationship by appointing another guardian?

I think that’s the argument that will have to be made the legal argument to appeal to an adjudicator hearing that kind of case in the absence of statutory guidance. But of course, statutory guidance is king, I mean, judges prefer to have guidance, they don’t like ambiguity. And you know, if someone makes a clever enough legal argument, they can make a ruling that may infringe a parent’s constitutional rights, because there’s ambiguity in the statute. So I know after CJC, that ambiguity has been removed now. And we might need something similar and guardianship.

Holly: Well, and we certainly see a lot in family court that because it has not been put into statute, there is still a lot of ambiguity and a lot of misunderstanding. A lot of attorneys don’t understand what CJC stands for what it means. But you know, if the guardian if the estate’s code for guardianship relies, and uses the term best interests of the child, I think CJC can be plugged in there very easily because the Supreme Court read the fit parent presumption and those constitutional rights into the best interest analysis.

Adriane: Right, exactly. That’s exactly what I’m referring to. But it does go back to that social policy, that developmentally a child should be with their parent. And so it’s in their best interest to be raised by a fit parent, and not to interrupt that. And I definitely could see that in an argument where, let’s say, just following this example, you given a relative related within third degree of consanguinity raising the argument of well, I want to be appointed guardian, I want to make health care decisions for this child.

Well, how is that in the best interest of the child for there to be two parents plus a third party, communicating with doctors about healthcare decisions or educational decisions communicating with teachers? I think that increases problems that increase we already have difficulty with co-parenting, how can we have co parenting plus relatives? I think that would increase problems with the children in that kind of situation.

Holly: Is it common for guardianship proceedings and conservatorship proceedings to happen simultaneously?

Adriane: No, I don’t know that it’s common. But it may happen because people don’t consider that guardianship could be used after a parent dies to install a caregiver and a legal role. They might look to a conservatorship naturally first, because that’s what we use commonly here in the state of Texas when it comes to children. So it may happen. I don’t know how frequently it happens, but it may just be lack of knowledge about there being this other process.

Holly: If there is a pending modification or sapcr proceeding, while there is also a guardianship proceeding going on, does the guardianship court have to defer to the family court for issues related to conservatorship?

Adriane: So I think that goes back. I think that goes back to the family codes, which says that the court that has exclusive jurisdiction over issue gets to exercise that. So I think that’s an issue of who has jurisdiction. And so that depends on where was the conservatorship proceeding in the process when this guardianship started, because if it was first, and a court already exercise jurisdiction over that case, then I think, then it has exclusive and continuing jurisdiction and the guardianship matter shouldn’t go forward. I think the bigger question is, well, what if the court had already issued an order and it was a decade ago or five years ago, and there hasn’t been any continuing litigation in there? And then this guardianship application is raised? I think that’s where the ambiguity lies.

Holly: Well, I think unless the court, family court lost jurisdiction for some reason, no matter how old that order is, the court retains continuing exclusive jurisdiction to deal with the parent child relationship, and those rights and duties related to the child. So I don’t see how if there was a prior sapcr order related to the child, and they haven’t moved states or something where the court lost continuing exclusive jurisdiction. I don’t know how a guardianship court could deal with those issues.

Adriane: Well, that’s what I’m saying. The family code is not crystal clear on that issue. It doesn’t state it in those turns. And that’s why I’m saying there’s where the ambiguity lies. It just says, you know, the these courts have continuing exclusive jurisdiction after they’ve, you know, exercise the jurisdiction or, you know, there’s an order on it. But they’re very related to conservatorship, there’s there isn’t specific, clear, concise language in the statute that says, if a court has exercise jurisdiction over a case involving this particular parent child relationship, no other court has jurisdiction to hear the matter.

I think that’s where the issue lies. The statute is not that clear and concise. And and you know, if it was, then, you know, definitely the answer would be absolutely not people can’t go over to guardianship if there’s already a conservatorship there. And so maybe that issue needs to be shored up a little. Because if you think about it, what if there was a sapcr order on a child, but eventually both parents died? If we had such a statute, that would mean that they have to go to the family court because of the prior conservatorship? or could they go to the guardianship now that both parents are deceased? So perhaps that’s, you know why it is the way it is right now.

Holly: So as family lawyers switching gears just a little bit, we’ll often see cases that involve children with disabilities. And I know that when those children aged out, parents might need to obtain guardianship. Do you have any advice for family lawyers about how to advise parents of disabled children?

Adriane: Absolutely, we do have laws in the family code that state that allow the Attorney General to continue collecting child support for an adult disabled child that is concurrent with that, that adult disabled child or their guardian or parent or supporter may want to make an application for public benefits. For example, a supplemental security income because that child is so disabled, they’re not going to be able to work independently, or, you know, they have them on Medicaid waiver programs related to housing, respite care, therapies, etc. And the federal law states that that child support once the child has turned 18 is 100% deemed double income to the child.

And so that child support is just you know, paid out without any other stipulation could disqualify the adult disabled child from these public benefits. So that’s a real important issue that fam parents who are getting a divorce and have an adult disabled child need to work out. And now the family code has been changed the last leg under the last legislature, such that a court can order the child support payments to be made to a special needs trust. And that’ll have the dual benefit of supporting the child a disabled adult child after they’re 18, but also allowing them to stay qualify for public benefits like SSI and Medicaid. So that’s a real important issue in my mind.

Second important issue is the issue of guardianship, right. So after the disabled child turns 18, if they are incapacitated, mentally, such that they can’t care for themselves or their property, then they are going to be in need of a guardian. And our estates code says that you can only have co guardians with married parents, or parents who had been previously appointed joint managing conservators. But if you can imagine co guardians from divorced parents is challenging. And so my thought on that is, they really ought to make an agreement in the divorce about who should be the guardian. So make an agreement about who’s going to have the right to ask to be appointed the guardian of the adult disabled child.

And while we’re making those kinds of agreements, just as we would make agreements about division of property, etc, make an agreement about who’s going to have the right to apply for any government benefits due to the child. Whether that be supplemental security income, disability insurance, if the child does start working a little bit and works up their own record for disability insurance. Or a Social Security benefit related to a parent who has retired there are benefits for dependent disabled adult child of a retired a parent who is retired and collecting their their retirement income.

So I think that there needs to be probably agreement About that, and also agreements to clarify, if there’s an order on child support, are we going to allow those benefits coming off a retired parent’s Social Security record, to act as an offset to any child support? I think those are issues that family law attorneys aren’t as familiar with. And so might not be on their radar, but they do come up later on down the road. And so more people knew about that those issues, they can plan better in the divorce process.

Holly: So one question I like to ask everyone that comes on my podcast is what is one piece of advice you would give to young attorneys?

Adriane: Be prepared. Be over prepared.

Holly: That advice applies equally to experienced attorneys.

Adriane: I agree. I agree although the arguments are easier to make after you’ve made them over and over and over. But when you’re starting out, and everything’s new, and you’ve never made the argument before, make sure you’ve read the statutes, read the local rules, read the civil rules of procedure and the rules of evidence. And make sure you are prepared for any counter arguments or objections the other side might make.

Holly: Excellent advice. So we’re just about out of time. But where can our listeners go to learn more about you and your firm?

Adriane: So our firm has a website that’s being built right now. It’s LGHEstateLaw.com. And the interim I have my own website from my solo practice, which is gracelawoffice.com. And I maintain a blog there, which will roll over into the lghestatelaw website soon, where I answer these frequently asked questions about guardianship, estate planning, how to appoint a guardian for minor child, power of attorneys and all of that.

Holly: All right. Well, thank you so much for joining us today. Lots of great information for family lawyers and guardianship lawyers as well, I think. Thanks for joining us.

Adriane: Thank you so much, Holly.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com