Temporary Restraining Orders vs. Temporary Guardianship

A temporary guardianship is a essentially an emergency proceeding designed to supervise and protect individuals who are “incapacitated” and whose assets or personal safety are in imminent danger.  The main difference between a temporary injunction and a temporary guardianship is that a temporary guardianship restrains an attorney-in-fact from managing the principal’s property while a temporary guardianship grants a third-party the right to act positively for the principal.  The Court must limit the power of a temporary guardian, however, to only those powers and duties necessary to protect the principal against the imminent danger shown. Unlike a permanent guardianship, a temporary guardianship does not automatically suspend the power of attorney-in-fact to act–unless the order appointing the temporary guardian explicitly so provides. To obtain a temporary guardianship, the Applicant must present substantial evidence that the proposed ward is an incapacitated person.  In addition, the Court must have probable cause to believe that the proposed ward or the proposed ward’s estate requires the immediate appointment of a guardian.  Section 875(g) states that the Court shall establish a temporary guardianship if there is substantial evidence that: (1) the proposed ward is incapacitated; and (2) there is imminent danger that the physical health or safety of the proposed ward will be seriously impaired, or that the proposed ward’s estate will be seriously damaged or dissipated unless immediate action is taken. A temporary guardianship only lasts for 60 days.

When seeking to gain quick control over a rogue attorney-in-fact, a temporary restraining order coupled with an application to establish a temporary guardianship can be extraordinarily effective.  To support a temporary restraining order, the applicant, as next-friend for the principal, should also file a separate lawsuit against the attorney-in-fact for breach of fiduciary duty and possibly for conversion, if applicable. Seeking a temporary restraining order while also seeking a temporary guardianship offers several significant advantages.

First, Texas courts are reluctant to create temporary guardianships, which can drain the proposed ward’s resources and the court’s time. In addition, where a least restrictive alternative, like a temporary restraining order, is available to address the imminent danger posed to the principal, courts will often deny an application to establish for temporary guardianship.  Seeking a temporary restraining order also provides the applicant with an alternative form of relief.  Second, typically several days will elapse between the date the application for a temporary guardianship is filed and the hearing date.  The court must appoint an attorney ad-litem to represent the principal who must have time to complete a preliminary investigation. Although the applicant is not typically required to notify the attorney-in-fact of the temporary guardianship proceeding, news among family and friends often travels fast. Assets can disappear during this “waiting” period.  Immediate relief can be obtained when the Court can hear and sign an ex-parte temporary restraining order the day it is filed.

 


 

Category : Guardianship Law &Probate Law

One Comment → “Temporary Restraining Orders vs. Temporary Guardianship”


  1. emily
    4 years ago

    my stepdad got a temporary gaurdianship over me. it makes me feel…that evryone tells me to take responsibility for my actions and when i do that someone always tries to take it away from me. really tho…im going thropugh a custodu battle, kicked out of my parents house{finally}, new relationship annd friends, only see my on 4 hours once a week, darby my dog is stuck at my parents and my Nana is passing away in her old bedroom in austin. Im not being negative, but i am being honest. there are times that i can feel my nurotransmitters burning out in myu brain because at times like this, nothing makes sence. thats why i am out of sorts. Emily isnt crazy, shes just Mad. ha ha have a blessed day