Houston Probate Attorney
If a party enters an appearance in a guardianship proceeding, do they still have to be personally served with a new application that is filed in the same case? Texas law requires service when a guardianship application is filed, but is this necessary when the party is already entered an appearance? The court addresses this in Guardianship of Gafford, 01-17-00634-CV (Tex. App.–Houston [1st Dist.] 2019).
Facts & Procedural History
Bobby lost the ability to care for himself due to advanced age. Bobby’s granddaughter was appointed as his temporary guardian.
Bobby’s wife entered an appearance in the guardianship proceeding . The granddaughter had the court restrain the wife from accessing Bobby’s financial accounts, his car, entering his home, or contacting him.
Before her own application to be appointed as guardian was heard by the court, the granddaughter filed another application asking the court to appoint her mother, Bobby’s daughter-in-law, as the permanent guardian of Bobby’s person.
Bobby’s wife was not served with citation for the second guardianship application; however, there was an affidavit from the granddaughter’s attorney testifying that the mother had agreed to a “Waiver of Service” and that it was “attached” to the affidavit. The waiver was not attached to the affidavit and the court could not find it.
The court appointed the daughter-in-law and this appeal ensued.
Citation in Guardianship Cases
The Texas Estates Code requires personal service on certain persons who are interested in the guardianship proceeding when the application is filed. This can be accomplished by way of a private process server or having the sheriff personally serve the person.
The persons who have to be served include:
- a proposed ward who is 12 years of age or older.
- the proposed ward’s parents, if the whereabouts of the parents are known or can be reasonably ascertained.
- any court-appointed conservator or person having control of the care and welfare of the proposed ward.
- the proposed ward’s spouse, if the whereabouts of the spouse are known or can be reasonably ascertained.
- the person named in the application to be appointed guardian, if that person is not the applicant.
The citation requirement can be waived by these persons. A waiver of service has to be filed with the clerk to be valid.
Omitting Waiver of Citation is Fatal
Even though the wife had entered an appearance in the granddaughter’s application, the granddaughter had to serve the wife with respect to the daughter-in-law’s application. Because she did not do so, and no waiver of citation was filed with the clerk, the appeals court concluded that the trial court did not have the authority to appoint the daughter-in-law as Bobby’s guardian.
The takeaway is that the waiver of citation should be obtained and filed with the clerk in cases like this. That the party entered an appearance in the underlying guardianship proceeding doesn’t matter. A new guardianship application triggers the requirement to either obtain a waiver of citation or personally serve the interested party.
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