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Texas Statutes (Last Updated: January 4, 2014) |
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PROBATE CODE |
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Chapter XIII. GUARDIANSHIP |
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Part 4. ADMINISTRATION OF GUARDIANSHIP |
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Subpart D. REVOCATION OF LETTERS, DEATH, RESIGNATION, AND REMOVAL |
Sec. 761. REMOVAL
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(a) The court, on its own motion or on motion of any interested person, including the ward, and without notice, may remove any guardian appointed under this chapter who:
(1) neglects to qualify in the manner and time required by law;
(2) fails to return within 30 days after qualification, unless the time is extended by order of the court, an inventory of the property of the guardianship estate and list of claims that have come to the guardian's knowledge;
(3) having been required to give a new bond, fails to do so within the time prescribed;
(4) absents himself or herself from the state for a period of three months at one time without permission of the court, or removes from the state;
(5) cannot be served with notices or other processes because of the fact that:
(A) the guardian's whereabouts are unknown;
(B) the guardian is eluding service; or
(C) the guardian is a nonresident of this state who does not have a resident agent to accept service of process in any guardianship proceeding or other matter relating to the guardianship;
(6) has misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state, all or any part of the property committed to the guardian's care;
(7) has engaged in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Section 48.002, Human Resources Code, if engaged in with respect to an elderly or disabled person, as defined by that section; or
(8) has neglected to educate or maintain the ward as liberally as the means of the ward and the condition of the ward's estate permit.
Text of subsection as added by Acts 2011, 82nd Leg., R.S., Ch. 599, Sec. 11
(a-1) In a proceeding to remove a guardian under Subsection (a)(6), (7), or (8) of this section, the court shall appoint a guardian ad litem as provided by Section 645 of this code and an attorney ad litem. The attorney ad litem has the duties prescribed by Section 647 of this code. In the interest of judicial economy, the court may appoint the same person as guardian ad litem and attorney ad litem unless a conflict exists between the interests to be represented by the guardian ad litem and attorney ad litem.
Text of subsection as added by Acts 2011, 82nd Leg., R.S., Ch. 1218, Sec. 1
(a-1) The court clerk shall issue notice of an order rendered by the court removing a guardian under Subsection (a)(1), (2), (3), (4), (6), (7), or (8) of this section. The notice must:
(1) state the names of the ward and the removed guardian;
(2) state the date the court signed the order of removal;
(3) contain the following statement printed in 12-point bold font:
"If you have been removed from serving as guardian under Section 761(a)(6) or (7), Texas Probate Code, you have the right to contest the order of removal by filing an application with the court for a hearing under Section 762, Texas Probate Code, to determine whether you should be reinstated as guardian. The application must be filed not later than the 30th day after the date the court signed the order of removal.";
(4) contain as an attachment a copy of the order of removal; and
(5) be personally served on the removed guardian not later than the seventh day after the date the court signed the order of removal.
(b) The court may remove a personal representative under Subsection (a)(6) or (7) of this section only on the presentation of clear and convincing evidence given under oath.
(c) The court may remove a guardian on its own motion, or on the complaint of an interested person, after the guardian has been cited by personal service to answer at a time and place set in the notice, when:
(1) sufficient grounds appear to support belief that the guardian has misapplied, embezzled, or removed from the state, or that the guardian is about to misapply, embezzle, or remove from the state, all or any part of the property committed to the care of the guardian;
(2) the guardian fails to return any account or report that is required by law to be made;
(3) the guardian fails to obey any proper order of the court having jurisdiction with respect to the performance of the guardian's duties;
(4) the guardian is proved to have been guilty of gross misconduct or mismanagement in the performance of the duties of the guardian;
(5) the guardian becomes incapacitated, or is sentenced to the penitentiary, or from any other cause becomes incapable of properly performing the duties of the guardian's trust;
(6) the guardian has engaged in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Section 48.002, Human Resources Code, if engaged in with respect to an elderly or disabled person, as defined by that section;
(6-a) the guardian neglects to educate or maintain the ward as liberally as the means of the ward's estate and the ward's ability or condition permit;
(7) the guardian interferes with the ward's progress or participation in programs in the community;
(8) the guardian fails to comply with the requirements of Section 697 of this code;
(9) the court determines that, because of the dissolution of the joint guardians' marriage, the termination of the guardians' joint appointment and the continuation of only one of the joint guardians as the sole guardian is in the best interest of the ward; or
(10) the guardian would be ineligible for appointment as a guardian under Section 681 of this code.
(c-1) In addition to the authority granted to the court under Subsection (c) of this section, the court may, on the complaint of the Guardianship Certification Board, remove a guardian who would be ineligible for appointment under Section 681 of this code because of the guardian's failure to maintain the certification required under Section 697B of this code. The guardian shall be cited to appear and contest the request for removal under this subsection in the manner provided by Subsection (c) of this section.
(d) The order of removal shall state the cause of the removal. It must require that any letters issued to the person who is removed shall, if the removed person has been personally served with citation, be surrendered and that all those letters be cancelled of record, whether or not delivered. It must further require, as to all the estate remaining in the hands of a removed person, delivery of the estate to the person or persons entitled to the estate, or to one who has been appointed and has qualified as successor guardian, and as to the person of a ward, that control be relinquished as required in the order.
(e) If a joint guardian is removed under Subsection (c)(9) of this section, the other joint guardian is entitled to continue to serve as the sole guardian unless removed for a reason other than the dissolution of the joint guardians' marriage.
(f) If the necessity exists, the court may immediately appoint a successor guardian without citation or notice but may not discharge the person removed as guardian of the estate or release the person or the sureties on the person's bond until final order or judgment is rendered on the final account of the guardian. Subject to an order of the court, a successor guardian has the rights and powers of the removed guardian.
(g) The court at any time may order a person removed as guardian under this section who has all or part of the estate of a ward to deliver all or part of the ward's estate to a person who has been appointed and has qualified as successor guardian.
(h) The appointment of a successor guardian under Subsection (f) of this section does not preclude an interested person from filing an application to be appointed guardian of the ward for whom the successor guardian was appointed. The court shall hold a hearing on an application filed under the circumstances described by this subsection. At the conclusion of the hearing, the court may set aside the appointment of the successor guardian and appoint the applicant as the ward's guardian if the applicant is not disqualified and after considering the requirements of Section 676 or 677 of this code, as applicable.
(i) If the court sets aside the appointment of the successor guardian under this section, the court may require the successor guardian to prepare and file, under oath, an accounting of the estate and to detail the disposition the successor has made of the estate property.