Appointment of Temporary Guardian Not Immediately Appealable

In probate and guardianship cases, the parties can appeal most court orders immediately. But what about the appointment of a temporary guardian? If you do not agree with the appointment, can you immediately appeal the probate court’s decision? The court addresses this in In Re Guardianship of Laverne T. Cady, No. 04-19-00588-CV (Ct. App. — San Antonio [4th Dist.] 2019).

Facts & Procedural History

This case involves an application to appoint a temporary guardian.

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 or is deemed to be mentally incompetent.

The case does not specify the relationship between the parties, but presumably the parties that filed the appeal are the parents and the guardian that was appointed is a business that offers guardianship services.

The question for the court was whether the parties can appeal the appointment of a temporary guardianship immediately or whether they have to wait until a later date to appeal.

Appealing Probate Court Orders

The general rule is that one cannot appeal the trial court’s decision until the final outcome of the case. This means that the parties have to wait until the outcome of the case to appeal decisions the court makes before the case concludes.

But court cases often involve several steps or phases. Each step or phase may result in the court issuing various orders. These orders may come before there is a final order or judgment in the case.

Questions about these rules often arise when the court signs an order before the final outcome and the order does not specify that it is final and appealable.

But with probate and guardianship cases, this general rule typically doesn’t apply. With probate and guardianship cases, the parties typically can appeal before the final outcome.

The court in this case summarizes these rules as follows:

an order … 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.”

But when is an order final and what is a substantial right?

When is an Order Final?

Most probate and guardianship cases involve final orders. The courts have found that most court orders in probate and guardianship cases are final and appealable. Here are some examples:

  • A probate court order that grants or denies an application to remove a personal representative is final and appealable.
  • A declaratory judgment that disposes of a will or construes a will is appealable.
  • An order granting or denying the appointment of an administrator is final and appealable.

This allows the parties to contest or appeal the order sooner rather than later.

But other matters are not final or appealable. For example, the decision as to the amount of a bond the executor has to post is not final and appealable.

One has to review the case law to determine what is and is not immediately appealable.

Appointment of Temporary Guardian is not Final

This brings us back to this case. This case involves an order appointing a temporary guardian.

The court in this case concludes that the order appointing a temporary guardian is not final or immediately appealable. The court reasons that the appointment does is not final.

But it should be noted that this type of order is very similar to the appointment of an administrator in a probate case. As noted above, the appointment of an administrator in a probate case is final and immediately appealable.

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