Texas Estate Planning Blog

As we discussed last time, most Probate Courts around the state have adopted somewhat of a “customer service” approach to administering the work that takes place in the Probate Courts. This approach is a logical result of the fact that the majority of the work that happens in these courts is brought about from people having to come to court following the death or incapacity of a friend or family member.

Because of the level of administrative work that happens in Probate Courts, most of these courts have several staff members who help facilitate the work that takes place in those Courts. For instance, each Probate Court in Houston has a Judge, an Associate Judge, and 10-12 other staff members, including at least one staff attorney. In Ft. Worth, the Probate Courts have a Judge, and 10-12 additional staff members, including at least one staff attorney. In Austin, the Probate Court has a Judge, an Associate Judge, and several other staff members, including multiple staff attorneys. In all 3 of these counties, each Probate Court has a Court Investigator assigned to the Court to conduct thorough investigations in guardianship cases, and each of the Courts has a Guardianship Coordinator to monitor the guardianship cases pending in the Court.

By contrast, the Dallas County Probate Courts have very small staffs who are ill-equipped to efficiently handle the work entrusted to them. For instance, each of these courts has a Judge and only 4-5 additional staff people. They do not have any staff attorneys, associate judges, an adequate number of staff, a Court Investigator assigned to the Court, or a Guardianship Coordinator. As a result, the Dallas Probate Courts are almost incapable of providing the residents of Dallas County with the same level of service that the residents of most other counties enjoy.

One of the most disturbing consequences of the inadequate staffing of the Dallas County Probate Courts is the lack of Court Investigators and Guardianship Coordinators in each Court. At the outset of a guardianship case, each Probate Court around Texas sends their Court Investigator out to conduct an investigation related to the Guardianship case. Once the Investigator submits his report, the Court will then allow the case to proceed. In most counties, the Court Investigator’s report is generally filed with the court within a week or two following the initiation of the guardianship case, thereby allowing the case to proceed in a timely fashion.

In Dallas County, however, there is not a Court Investigator assigned to any of the Courts. Rather, the Courts draw from an investigator “pool.” Although the local Dallas County rules say that the investigators should strive to have their Reports submitted within 30 days, the reports are routinely not filed for 3 to 4 months after the initiation of the Guardianship. Inasmuch as the case cannot proceed without the filing of the Court Investigator’s Report, these Courts are routinely allowing incapacitated people to wait for months before they can receive the care that they require.

To compound the problems of inadequate staffing, the Dallas County Probate Courts also lack the basic technology to function in today’s society. Unbelievably, none of the Dallas County Probate Courts has a copy machine, a modern laser printer, a fax machine, or even the ability to make a long-distance phone call. These Courts are still using antiquated dot-matrix printers to print much of their correspondence. To make a photocopy of a document, they are required to go to the main county clerk’s office because none of the Courts has a copy machine. When trying to call an attorney on a case who has a long-distance phone number, the Court staff mails a letter to the attorney asking that they call the Court.

By contrast, the other Probate Courts around the state have modern technology, and in some cases, those courts have the most up-to-date technology. For instance, in one county, every member of the Court staff has a 4-in-1 copier/fax/printer/scanner machine on their desks, making it possible for each staff member to make high-quality laser copies, send/receive faxes directly at their desks, etc. Most other Probate Courts across the state have the ability to make long-distance phone calls, have photocopy machines in the Court staff offices, have fax machines, etc.

When questioned why the Dallas County Probate Courts are so under-staffed and under-equipped, the response given routinely is, “The (Dallas County) Commissioners won’t provide enough money to hire the appropriate levels of staff and won’t provide the necessary technology.”

If the goal of most Probate Courts across the state is to provide a friendly, customer-service atmosphere to serve the general public in the difficult times following the death or incapacity of a friend or family member, then the question that most of you are asking yourselves is, “How can the Dallas Probate Courts provide the customer service that other Courts around Texas provide if the Dallas County Commissioners refuse to give them the money necessary to adequately staff the Courts and to provide even the most basic modern technology?”

The answer is, “They can’t!”

Implicit in the ability of a Court, or any other business, to be able to adequately meet its “customers’” needs in 2008 is the ability of the Court or business to maintain adequate staff levels and to utilize technology to its advantage. The lack of appropriate staff and technology paralyzes the Dallas Probate Courts and prevents them from being able to timely address the needs of the public that they serve.

Can anyone imagine someone in one major city sending a letter by snail-mail to someone in another major city that says, “Please call me,” simply because they don’t have the ability to make a long distance phone call? Such a scenario seems almost barbaric!

The residents of Dallas County should demand that the Dallas County Commissioners take steps to afford the Dallas County Probate Courts the appropriate funding to be able to “upgrade” their technological capabilities to the most basic 2008 technology and to hire adequate staff levels to provide the Courts the ability to better serve Dallas County.

Probate Courts are somewhat of a unique concept in Texas in that these courts are specially designated to handle only one type of case.  Generally, the courts around the state of Texas are somewhat “general” in nature–meaning that most courts handle multiple, if not almost unlimited, types of cases.  For instance, a general civil court might handle personal injury cases, contract disputes, business litigation cases, etc.  In smaller counties, the general courts handle both civil and criminal cases.

In approximately 12 counties across Texas, the Legislature has designated special “Probate” Courts, which only handle Probate, Guardianship, and some Trust cases.  Inasmuch as probate, guardianship, and trust matters are all fairly inter-related, it makes sense that these special courts would handle all of these issues as the cases tend to overlap.

The creation of special courts like the Probate Courts is very limited in Texas.  In some counties, certain courts are designated as “criminal” courts or “family” courts, but in reality, those courts all have the ability to handle non-criminal or non-family issues (respectively).  The Probate Courts are the only Courts in Texas that are created to handle one limited area of law and, by statute, cannot handle any other type of cases.

The question you might be asking yourself: “Why is probate such a unique area of law that there are special courts created specifically to handle only probate cases?”

Most people who find themselves standing in a courtroom are there because they are involved in some kind of a conflict – a divorce, a lawsuit, a criminal proceeding, etc.  Many probate and guardianship cases, however, do not involve a conflict.  For instance, the family of a recently deceased loved-one may be before the Court for the purpose of probating a Will to finalize the estate matters following that loved-one’s death.  Likewise, the children of an elderly lady suffering from Alzheimer’s may be asking the Court to appoint a guardian for their mother so that they will have the ability to provide the best care possible for her.  These cases do not involve any kind of conflict, but they still require Court intervention and action.

Although some of the cases brought to the Probate Courts involve conflicts between family members or people claiming a right under a Will, the overwhelming majority of the work performed in the Probate Courts is “administrative.”  These Courts must review all of the documents required by law to be filed in a Probate or Guardianship case (i.e. the Inventory of Assets, Annual Accountings, notices to heirs, etc.) to ensure that all of the various steps that must be completed in such cases have actually been accomplished.  The necessity to review all of these documents distinguishes the Probate Courts from other Courts because virtually no other Court in Texas is charged with the responsibility of verifying the accuracy of documents filed in their Courts.

Because of the administrative nature of the Probate Courts, many of the Probate judges around Texas take somewhat of a “customer service” approach to the operation of their Courts.  Realizing that most people come to the Probate Court only in times of personal or family sadness following the death or incapacity of a loved one, most Probate judges strive to ease the probate/guardianship process as much as possible to make the otherwise difficult time as easy and friendly as possible.

Given the nature of the work that goes on in the Probate Courts, it seems appropriate that these courts be operated with a view towards serving the public.  In all reality, very few people in society want to hire a lawyer and go to Court for any reason.  In the difficult times following the death of a friend or family member, the general public should be able to expect that our Probate Courts will be there to assist them in making the probate process as easy and user-friendly as possible.  Anything less should be unacceptable.

Okay, when last we left, you found yourself sitting in an appropriate Mental Health Facility, and you have just been admitted to temporary custody on the application of a person who believed you were suffering from a “mental illness”. You have no idea what to do, and you have no idea what your rights are in relation to your stay. That’s where I come in.

Now, first things first, you need to understand the reason for your stay. The purpose of an emergency detention is to determine if you are suffering from a mental illness and if as a result of the mental illness, you present a substantial risk of harm to yourself or others.

So you’re probably now asking yourself, what exactly constitutes a “mental illness”. The term “Mental Illness” as used in the Texas Mental Health Code is defined as an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that: (i) substantially impairs a person’s thought, perception of reality, emotional process, or judgment or (ii) grossly impairs behavior as demonstrated by recent disturbed behavior. Tex. Health & Safety Code § 571.003(14).

The first thing that will happen as you reach the facility is that you will be temporarily accepted to the facility for a preliminary examination. Therefore, you need to know your rights. And to that end you should know that if you are apprehended you have the following rights:

1. The Right to be advised of the location of detention, the reasons for detention, and the fact that the detention could result in a longer period of involuntary commitment.

2. The Right to a reasonable opportunity to communicate with and retain an attorney.

3. The Right to be advised that communications with a mental health professional may be used in proceedings for further detention.

This is important because you may be detained in custody for not longer than 24 hours after the time you are presented to the facility unless a written order for further detention is obtained. Once that 24 hours is up, and the physician has given you a preliminary examination, you may be admitted to the facility for emergency detention only if the physician makes a written statement that states that you are mentally ill; that you are evidencing a substantial risk of serious harm to yourself or others; that the described risk of harm is imminent unless you are immediately restrained; and that emergency detention is the least restrictive means by which the necessary restraint may be accomplished.

The written statement must also include a description of the nature of the person’s mental illness; a specific description of the risk of harm the person evidences that may be demonstrated either by the person’s behavior or by evidence of severe emotional distress and deterioration in the person’s mental condition to the extent that the person cannot remain at liberty; and the specific detailed information from which the physician formed the opinion.

If all goes well, the doctor will deem you to not be suffering from mental illness, and he will arrange for you to be released. If he does this, arrangements shall be made to transport you to the location of your apprehension; your residence; or another suitable location. The County will also foot the bill for this transportation.

At the end of the twenty-four hour detention period, you must be released unless you are detained under an Order for Protective Custody.

Next time we will find out just what happens under such an Order.

As you no doubt have realized, it appears that our friend Brit has some pretty serious mental health issues. What you probably haven’t realized is what that has to do with a Probate Blog. Well, that’s where I come in.

Actually, the situation Britney currently finds herself in directly relates to probate. Or at least it would if she resided in Harris County. This is because in Harris County, the Probate Courts are in charge of the so-called “Mental Health Docket”. Probate Courts Three and Four each have specific dockets that deal solely with involuntary commitment hearings, the subject of which, Britney currently finds herself. I have served as a court appoited attorney on the Mental Health Docket for four years now. So, I thought I would use this opportunity to talk a little bit about the procedures involved in a mental health commitment and give just a general background about Harris County’s Mental Health Department.

To start, I will discuss an involuntary commitment hearing. This is the kind of commitment that Britney’s mother used to get Britney admitted to the hospital for treatment. The first step in the process is usually the filing of what is called an Application for Emergency Detention. This is the document that applicants (such as Britney’s mom) fill out if they feel that someone they know is in need of immediate psychiatric care. The guidelines to such an application can be found in the Health and Safety Code, §§ 573.011. That section states that an adult may file a written application for the emergency detention of another person if the applicant has reason to believe and does believe that the person evidences mental illness; that the applicant has reason to believe and does believe that the person evidences a substantial risk of serious harm to himself or others; that the applicant has reason to believe and does believe that the risk of harm is imminent unless the person is immediately restrained; that the applicant’s beliefs are derived from specific recent behavior, overt acts, attempts, or threats; a detailed description of the specific behavior, acts, attempts, or threats. The applicant must also give a detailed description of the applicant’s relationship to the person whose detention is sought.

After filling out the Application, the applicant must then present the application personally to a judge or magistrate. The judge or magistrate shall examine the application and may interview the applicant. The magistrate will then review the application and determine if there reasonable cause to believe that the person evidences mental illness; the person evidences a substantial risk of serious harm to himself or others; the risk of harm is imminent unless the person is immediately restrained; and the necessary restraint cannot be accomplished without emergency detention.

Now in case you are thinking this is a swell way to temporarily dispose of your rowdy teenagers next weekend, the requirements for a substantial risk of serious harm are laid out in the next section. Such risk of harm may be demonstrated by the person’s behavior; or evidence of severe emotional distress and deterioration in the person’s mental condition to the extent that the person cannot remain at liberty.

If the magistrate is satisfied that such risk exists he will issue to an on-duty peace officer a warrant for the person’s immediate apprehension. The person apprehended will then be transported for a preliminary examination to the nearest appropriate inpatient mental health facility; or a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available.

And that is where Britney finds herself now. In an appropriate inpatient mental health facility. However, least any of you be disappointed should such a fate befall upon you, unlike Ms. Spears first class trip to Cedars-Sinai, Harris County does not provide 3 block long police motorcades on your way to the hospital. Unfortunately for us plebs, we merely get a luxurious ride in the back of a police cruiser. What can I say, it pays to be famous.

Next time I will delve into what happens upon arrival at such Mental Health facility and the rights and procedures afforded to all those under such Mental Health Warrants.

You may have seen the recent stories about the Probate Courts in Harris County. To describe them as unflattering would be an understatement. The Houston Chronicle is all abuzz over Probate abuse, exorbitant fees, and a good-ole boy network in the Probate system. Now, to be honest, some of the questions were legitimate. When a non-lawyer, non-cpa is allowed to charge 1.38 million dollars and then ask off the case while it sits unresolved, you have to ask some serious questions. However, what the articles are not telling you, and what the Chronicle will never understand is that, ultimately, this new found interest in probate is going to cost you more while giving you less.

In recent articles the Chronicle has insinuated that Probate Judges appoint small circles of friends to most cases and therefore rack up fees for their buddies, while hopefully recouping the difference in campaign contributions. Quite simply, this is ridiculous.

First of all, let’s dispense with the campaign issues right away. I don’t know if you remember the last time you voted, but I’d be willing to bet, that even if you do, you don’t remember voting for Probate Judges. The reason for this is that the Probate Judges are the absolute dead last category for elected officials in Texas. That means that after you voted for Governor, and Lieutenant Governor, and Railroad Commissioner, and the state senate, if you are one of the few that actually fills out the whole ballot, you still have about four pages of offices to scroll through before you get to the probate judges. And lets face it, there are very few, if any, that actually know the candidates past page three, and even less who pay attention to every race by the time they reach the end of the ballot. This is why, for the past decade plus, if you are a Probate Judge in Harris County, and you are running on a Republican ticket, you are an automatic victor.

There have been millions spent in past elections, attempting to inform the public about the qualifications (or lack thereof) of certain judges in these races, and the most they could manage was a few percentage points difference in a 65-35 landslide. The fact is, incumbent Probate Judges are shoe-ins, and no amount of campaign spending is needed to continue that trend. Until we see a shift in ideology at the polls, the little “R” next to their names ensure a landslide victory.

So, with that out of the way we can now focus on the real issue. The question remains, is there a “good old boys” network down at the probate court? This question is really two fold. One, do judges really only appoint a small group of lawyers to a large number of cases. And two, if so, is that a bad thing? The answer is yes, and no. And unfortunately for you, that trend is disappearing quickly.

Despite what you hear in the papers and on the news, the fact that the Court appoints a select group of individuals to preside over their probate cases, is actually a very good thing. Think about this, if you have a complex case in probate court, and it requires that the court appoint a lawyer to handle certain matters during the proceeding, who do you want the Court to appoint in such a situation? Do you want a lawyer with a long track record of excellence in that courtroom, whom the judge is familiar with and trusts, and who knows exactly what they are doing and can do it efficiently? Or do you want a lawyer the Judge doesn’t know, who probably hasn’t even been to probate court in the past year, if ever, and who has basically no understanding of the probate process and who will have to teach himself the ropes at your expense every step of the way? Pretty simple choice if you ask me.

You see, the truth is there are very few probate-only lawyers in Houston. The number of firms who specialize in only handling probate matters can be counted on two hands. And the average probate firm has less than five lawyers total. When you consider that Houston alone has thousands of law firms, some with lawyers numbering in the hundreds, the true picture of just how small the probate community becomes clear.

And it is precisely because of this fact that stories such as the Chronicles latest attacks are so dangerous to you and your potential probate case. You see, when Judges get ancy about who to appoint, they are forced to look outside the realm of probate attorneys. And while many lawyers believe that there is nothing to doing a probate case, when a person is not familiar with the process, he or she can rack up completely unnecessary fees in no time at all, costing the average applicant thousands of dollars without anyone realizing the difference.

What would normally take a probate attorney only a few hours to complete, now takes an unexperienced lawyer five to six hours to complete. Worse still, most probate judges are likely to appoint inexperienced lawyers to simple probate matters because their hourly rate lends itself to the simple work of an uncontested probate matter. However, when these inexperienced lawyers attempt to handle such matters, fees go up because it now takes that person longer to do the same job that a more experienced lawyer was doing in half the time. This costs you money in the long run, and ultimately gives you a much lower quality product in the end.

So please remember that the fact that a Probate Judge appoints a select few to handle matters is not automatically a bad thing.