A temporary guardianship is a legal arrangement where an appointed person takes care of a minor or an individual deemed mentally incompetent for a specific period.
While temporary guardianship can be a helpful solution, there may be circumstances where one party wishes to challenge or appeal the guardianship arrangement.
Usually, in probate and guardianship cases, the parties can appeal most court orders immediately. However, when it comes to appealing temporary guardianship, there is often some ambiguity regarding the right to appeal.
In a recent case, In Re Guardianship of Laverne T. Cady, No. 04-19-00588-CV (Ct. App. — San Antonio [4th Dist.] 2019), the court addressed whether parties can appeal a temporary guardianship order immediately.
Facts & Procedural History
Appealing Probate Court Orders
Court cases often involve several steps or phases. Each step or phase may result in the court issuing various orders that come before there is a final order or judgment in the case. Questions often arise when the court signs an order before the final outcome and the order does not specify that it is final and appealable.
The general rule is that one cannot appeal the trial court’s decision until the final outcome of the case. In probate and guardianship cases, the general rule doesn’t apply. Instead, the parties typically can appeal before the final outcome.
Temporary Guardianship Laws in Texas
Texas law allows probate courts to appoint temporary guardians when there is probable cause to believe that the person, the person’s estate, or both require the immediate appointment of a guardian. It can be for a minor or other person who is deemed to be mentally incompetent.
The person for whom a temporary guardian is appointed retains all rights and powers that are not specifically granted to the person’s temporary guardian by court order. A sworn, written application for the appointment of a temporary guardian must be filed before the court appoints a temporary guardian. According to the estates code, the application must include the following:
(1) the name and address of the person who is the subject of the guardianship proceeding; (2) the danger to the person or property alleged to be imminent; (3) the type of appointment and the particular protection and assistance being requested; (4) the facts and reasons supporting the allegations and requests; (5) the proposed temporary guardian's name, address, and qualification; (6) the applicant's name, address, and interest; and (7) if applicable, that the proposed temporary guardian is a private professional guardian
On the filing of an application for temporary guardianship, the court shall appoint an attorney to represent the person in all guardianship proceedings in which independent counsel has not been retained.
Immediately after an application for a temporary guardianship is filed, the court will issue an order setting a certain date for the hearing on the application. The hearing will be held not later than the 10th day after the date the application for temporary guardianship is filed.
According to Sec. 1251.007 of the Estates Code, the incapacitated person’s attorney may appear and move for the dismissal of the temporary guardianship. “If a motion is made for dismissal of the application for temporary guardianship, the court shall hear and determine the motion as expeditiously as justice requires.”
In the case In Re Guardianship of Laverne T. Cady, the parties attempted to appeal the trial court’s order that appointed a temporary guardian for Laverne Cady and her estate. After an independent medical examination, Cady was considered to be an incapacitated person.
The question for the court was whether the parties could appeal the guardianship appointment immediately. The court responded by issuing a show cause order questioning their jurisdiction over the appeal and directed the appellants to respond regarding the appealability of the order and their standing to appeal.
The Probate Court’s Decision
The court summarized the rules as follows:
“An order under the Estates Code is final and appealable if there is an express statute… declaring the phase of the probate proceedings to be final and appealable or if the order adjudicates a substantial right and disposes of all issues in the phase of the proceeding for which it was brought.”
This means, absent a statute that makes the temporary guardianship phase a final phase, the order can’t be appealed. Instead, the order would be considered interlocutory.
Interlocutory orders refer to orders issued by a court during an ongoing case. They are not intended to be the final verdict and instead serve to temporarily resolve a specific issue within the larger case. Their purpose is to alleviate a particular matter temporarily, ensuring the smooth progression of the case. Due to their provisional nature, it is very rare that an interlocutory order can be appealed.
If the interlocutory order appointing a temporary guardian were appealable, the appeal would be accelerated and the notice of appeal would be due twenty days after the order was signed. A motion for an extension of time to file the notice of appeal could be filed to extend the due date by fifteen days.
Ultimately, the court determined that the temporary guardianship appointment phase isn’t immediately appealable because it doesn’t dispose of all the issues, and they dismissed the case for lack of jurisdiction.
Probate Orders That Are Not Considered Final
Texas courts have determined that the following probate court orders are not final and appealable:
- Order requiring court approval for disbursements
- Interim order establishing a budget
- Ruling on demand for a periodic accounting
Probate Orders That Are Final
Here are some examples of court orders in probate cases that are final and appealable:
- A probate court order that grants or denies an application to remove a personal representative
- A declaratory judgment that disposes of a will or construes a will
- An order granting or denying the appointment of an administrator
- A ruling on whether a will is admitted to probate is immediately appealable
In conclusion, appealing a temporary guardianship can be a complex and nuanced legal process. It requires those involved to know the law and to determine what is immediately appealable. The deadline to appeal a Texas probate court order or judgment can be very short, sometimes as little as 20 days after entry of the judgment. If you are considering appealing a Texas probate decision, it is imperative that you contact a Texas probate appeals lawyer who can advise you regarding whether your order can be appealed, and the deadline for filing an appeal.
By working with a knowledgeable attorney, parties can help ensure that their rights and interests are protected throughout the guardianship proceedings and that any potential appeals are handled in a timely and strategic manner.
Our Houston Probate Attorneys provide a full range of probate services to our clients. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.