Oct. 15, 2026

Representing the Incapacitated Client with Price Johnson

Representing the Incapacitated Client with Price Johnson
Representing the Incapacitated Client with Price Johnson
Winning The TBI Case
Representing the Incapacitated Client with Price Johnson
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“Most probate lawyers don’t know anything whatsoever about personal injury. They’ve never handled a personal injury case, don’t know how to, and don’t understand why you’re doing what you’re doing at all, and that can be dangerous.” – Price Johnson

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode
Tom is joined by Price Johnson, a Dallas probate attorney, and CPA who is the kind of specialist trial lawyers call when a severely injured client may lack the capacity to sign a contract or approve a settlement.

Protecting Your Client, Your Contract, and Your Fee

A severely injured TBI client walks through your door with a loved one by their side. The injury is clear. The case is real. But the client cannot sign your contract. What do you do? When do you act? And who is your client?

Price Johnson walks through the practical realities of representing clients whose capacity is in question. He covers the three paths available to attorneys in these situations. He explains the “incapacity trap” that can turn strong damages proof into a procedural problem. And he reveals the specific reason why calling a probate specialist should happen earlier than most trial lawyers think.

What’s at Stake

At stake is more than procedure. In a contingency case, how do you protect your fee when a probate judge later gets a say in whether it was reasonable? Price walks through:

  • The reason why one-third contingencies rarely get challenged
  • Why higher contingencies do get challenged
  • Why getting your engagement fee approved up front protects both your client and your firm

If you’ve ever worried about whether your contract will hold up or your fee will survive probate court scrutiny, this conversation is for you.

Connect

Winning the TBI Case — Episode 24: Representing the Incapacitated Client

Host: Tom Crosley Guest: Price Johnson Runtime: 39:37

[00:00] Price Johnson (cold open): Most probate lawyers don’t know anything whatsoever about personal injury. They’ve never handled a personal injury case, don’t know how to, and don’t understand why you’re doing what you’re doing at all. And that can be dangerous.

[00:13] Announcer: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it — that’s where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials. Not just the victories, but the lessons learned along the way that make all the difference. Winning the TBI Case: strategy, science, and storytelling.

[00:48] Tom Crosley: Welcome back to Winning the TBI Case. I’m Tom Crosley, and today we are joined by Dallas attorney Price Johnson. Price is a CPA and a lawyer and represents business clients in business litigation. A significant portion of his practice is probate issues and probate litigation. And in particular, he helps personal injury lawyers deal with guardianship and probate issues that arise in their cases.

What I’ve invited him on the show to talk about today is what we TBI lawyers need to be aware of when representing severely injured clients. In some cases, our client may lack capacity even to sign the original attorney-client contract. What do we do? How do we spot those issues? When do we act? At some point we might need court approval for certain activities in the case, including settlement. And so Price is the kind of lawyer that lawyers like me call when we have these issues in our cases. Price, how are you doing this morning?

[01:50] Price Johnson: Tom, I’m great this morning. Thanks for having me on. It’s a privilege to be here with you.

[01:55] Tom Crosley: What I’d like to do — for an audience that extends beyond the borders of the state of Texas — is frame the issue for us. When we have a more serious TBI case, let’s say we’ve just gotten it in to sign it up. What do we need to be aware of to make sure we’re doing it right?

[02:15] Price Johnson: It’s a can of worms. There are a lot of things to do, and probably the most important thing I think a personal injury lawyer handling TBI cases can do is find out as many facts as possible. The place I would generally start is to try to find out what your client’s capacity is.

Keep in mind, in my probate world — unlike the personal injury world, where so much of what we rely on is common law, where we go look up court cases and they tell us what the rules are, sometimes even the elements of our causes of action and claims — much of this is codified. It’s an old area, and a lot of it’s codified. So when I use terms like “incapacitated,” those are literally defined terms.

So the first thing you want to make sure of is: who’s your client? Just as in any case, right? You want to make sure who your client is, because without a client, well, you don’t have a case, right, Tom? You don’t have a client to work for. So the first thing you’re going to do is try to figure out who the client is. And if the injured party that you’re trying to ultimately represent is incapacitated, you’ve got to find somebody with authority to hire you.

[03:27] Tom Crosley: What is the significance to us TBI lawyers that probate codes exist, and that the law in probate is typically code-based as opposed to stare decisis–based?

[03:43] Price Johnson: Well, one nice thing about it is some of these things you can look up — they’re actually rules, statutes that exist. For example, we all tend to rely on case law, or in my area, statutes, but also case law that interprets those statutes.

But where I would tell you to be very, very careful — particularly, for example, you and I are in Texas — is the Rules of Civil Procedure. Lawyers come to me all the time and go, “Well, Texas Rule of Civil Procedure 151 or 152” — which I refer to as the dead plaintiff and dead defendant rules — “say this. They say I can just go file a suggestion of death, a motion for scire facias, serve the heirs, and I’m good.” Well, those are rules. They’re not statutes or case law, and they absolutely conflict with the statutes and case law, and you will walk right into a malpractice claim and no client. So there are pitfalls and traps to be aware of.

And to go back to a question you were asking me a moment ago — trying to figure out who your client is — obviously in a TBI case, you’re presuming that your client’s not deceased. Not yet, and hopefully won’t be. So you’re not going to end up with, for example, an administrator or an executor of an estate, because that only happens when someone’s dead, right? What you’re going to have is possibly someone with a power of attorney, possibly a guardian of the estate.

Then there comes the trick: how many of us have powers of attorney right now, while you and I are competent and have capacity? Most don’t. Most lawyers don’t, most people don’t — just like most people don’t have wills. So what are the odds that your fellow TBI lawyers out there are going to have someone walk in and say, “My husband, my son, my daughter, my parent, my whomever was seriously injured. They’re in the hospital with a TBI, or they’re in a coma right now and they can’t communicate because they don’t have capacity. But here, I’ve got this power of attorney.” I’m guessing that doesn’t happen for you a lot, does it, Tom?

[05:51] Tom Crosley: No, not at all. Probably never.

[05:53] Price Johnson: And so the trick then becomes: well, if they don’t have capacity right now, they can’t sign a power of attorney. So then you get into whether they qualify for a guardianship or not. And is the guardianship the right move — where you’re at least temporarily, possibly permanently, stripping the rights from that individual that has the TBI and vesting them in someone else? That’s certainly an option, but that takes time. It’s a process.

And then, of course, in Texas we do have the next friend rule — Rule 44 in Texas. It also depends heavily on what the relationship is between the person coming to you and the injured party that lacks capacity. So there are a lot of different things you look at, but that’s where I would suggest everybody start: what are the facts of the capacity? How long is it expected to last? Are they going to come out of this in a week, hopefully, or is it unknown? How severe is it? Is it potentially permanent? And then what steps should we be taking, and who’s the party coming to you? What is their relationship with this person? That will help us figure out what the avenues are.

[06:55] Tom Crosley: Let’s use a few case examples. Often I’ll get hired later in the process — maybe a referring attorney gets me involved. And so I had one case where it had already been going for maybe two years by the time I got involved. The wife was severely injured and was in a coma for 30 days. And while she was in a coma, her husband signed the personal injury contract with the lawyer, individually and as next friend of his wife. I was concerned about that, because she lacked capacity. Her recovery was never good enough for her to really ratify. She required round-the-clock care. How should that scenario be addressed, if it’s done right from the outset?

[07:43] Price Johnson: Tough spot to be in. And I’ll touch briefly on something you said about ratification. If you have someone — depending on the state and nature of their TBI, and you and your audience know better than anybody that these come and go — they can have lucid moments, or they may not. But you also have to watch out for the medications they’re on, namely pain medications and things like that, and the implications of those. If they have a lucid moment, especially when they’re in the hospital, and you can have a doctor or nurse or someone verify that, ratification is a great opportunity, right?

As you mentioned, in your example, you don’t have that. And so here you have someone coming in who has no legal authority to sign a contract on behalf of his wife. I know that may sound strange to some, but he doesn’t. Had the wife died, he’d have his own wrongful death claim. But again, we’re talking TBI cases. We’re not talking administrators, executors, wrongful death claims, so those don’t come into play. That’s a different animal.

Here, what you would really have to do is, if the person had any kind of lucid moment, you could go get powers of attorney signed, you could get the contract signed, you could get the contract ratified. But back to your example, where they’re not having that lucid moment — at least not yet — the only true, real option under the law in most states, and certainly in Texas, is a guardianship of the estate.

Now, there’s guardian of the person and guardian of the estate. Think of a medical power of attorney and a durable power of attorney: medical is healthcare decisions; durable is all the rest of the things, including an engagement agreement with a lawyer. And I emphasize that because I have lawyers come to me all the time, and they think all the powers of attorney are the same. Someone’s got a medical power of attorney — that’s not what you want to sign your engagement agreement. They need to have authority to contract, and that’s the durable power of attorney, or what I like to call the financial power of attorney.

There is the option of Rule 44 in Texas — the next friend, as you referred to it; most states have something similar. You have him sign it as next friend; you have him sign it individually and on her behalf. And then you start working on trying to fix this problem. What most lawyers do — and obviously it’s got to be a good enough case for you to take and front the expenses — is they call a lawyer like me, and we start working on the guardianship process to get a guardianship, or if nothing else, a temporary guardian appointed for purposes of pursuing the case.

And you can do that. You can get temporary guardians. There’s not really such a thing as a limited guardian in Texas — it’s a full guardian — but you can get them for a limited period of time, or “temporary,” as we call them. And in a temporary, you can limit the authority — not so on a permanent guardianship, but in a temporary. So there are ways to do that.

So the first thing you should do is sign them up — number one. And number two, call someone like me who specializes in this — preferably someone who knows probate and guardianship, but also personal injury. And the caveat I will give you here is, I guess I am a bit of a unicorn, because most probate lawyers don’t know anything whatsoever about personal injury. They’ve never handled a personal injury case, don’t know how to, and don’t understand why you’re doing what you’re doing at all. And that can be dangerous.

On the other hand, most personal injury lawyers don’t have a good grasp on probate. But I will tell you this: when you go hire this probate lawyer, educate them on what you’re doing and why. Do not trust that they’re going to do a probate or a guardianship in the manner that best fits your needs, because they’re not. They are robots. They’re going to do the guardianship and the probate the way they always have in every case, and they’re not going to take into account the needs of you and your client in a personal injury case, which are quite unique.

[11:40] Tom Crosley: So I have several follow-up questions. Let’s start with the scenario in which the husband signs the contract initially, while the wife is in a coma, and he signs it individually and as next friend of the wife. Now let’s say at some point in the future, the wife comes out of the coma. She’s going through rehab. She’s learning how to walk, talk. She’s got severe impairments. How low is that threshold for a lucid interval that would enable her to sign a durable power of attorney? And is that a viable option?

[12:12] Price Johnson: It is a viable option. So this is one of the areas where it is not in the codes or the statutes. There is case law out there in almost every state, certainly in Texas, that talks about lucid intervals and lucid moments. I don’t think the case law gives great guidance.

Here is what my takeaway would be for you from a personal injury lawyer’s standpoint. You know how medical professionals will frequently perform MMSEs on people — you know, “Who’s the president? What time is it? Draw this figure.” They’ll give them three words, wait a few minutes, and have them repeat those three words.

Tom Crosley: You’re referring to a mini-mental status exam.

Price Johnson: Okay. And that’s been around in some form for decades. That’s frequently done. At times you can have medical professionals — you can just inquire with them while you’re visiting with the person, and hopefully have them document in the progress notes that, in their opinion, they were with the person that day and the person had the capacity and ability to meet with the lawyer and to engage in a contract. They will use different kinds of language. But frequently, in my opinion: visit with the person, visit with the family, visit with the medical professionals. And if you get a good feel, in discussing with them, that this person has the capacity, then I think you’re probably okay. That’s the easiest way I could say to do it.

And this is something I would hope any lawyer doing what you’re doing does: stay up to speed with the recovery and status of your client, the patient, and how they’re doing, and go see them when you can.

[13:53] Tom Crosley: Let’s say we don’t go the durable power of attorney route, but the client improves enough to where they can now ratify that original contract. What, at a minimum, does the client need to be able to do to effectively ratify that contract?

[14:12] Price Johnson: They have to be able to understand and comprehend the business that they are engaging in and the nature of that business. They have to know who they are. They have to know who you are. They have to understand the business that they’re engaging in — in other words, that they’re hiring a lawyer to help them pursue their claim against the at-fault parties. And I know I’m using sort of legalistic terms, but those are terms your audience will understand, in making sure that they explain this to the person and document that it’s being explained.

I would love it if you had a witness to it, and then either have them sign a ratification — make sure that the prior agreement is attached — or an entirely new agreement, or both, in an ultimate belt-and-suspenders approach.

I will also tell you this: if the person has sufficient mental capacity to execute a ratification or a new engagement agreement with you, they also by definition have capacity to execute a power of attorney. And so what you might do at that point in time is go in there with a limited durable power of attorney. Because remember, powers of attorney are shared authority. A guardianship strips authority from Price and vests it in Tom — I can no longer make my own decisions. A power of attorney shares authority: you can make decisions for me, and I can still make decisions for me.

You might also consider having them execute a durable power of attorney that, if nothing more, at least gives this person — the spouse, in your example — the ability to go in and assist them in the case and the legal aspects of the case, potentially even including settlement and resolution of the case. You could do both.

[15:59] Tom Crosley: I’m going to describe the process that I’m usually trying to prove in a severe TBI case, and then the sticky wicket that I think we find ourselves in, potentially, in these cases if we haven’t set them up right. And this would be true of the husband signing for the wife in the severe example I gave you.

Another severe example: a 24-year-old riding a bicycle without a helmet, run over by a UPS truck. He was living independently with his grandparents at the time and working in a convenience store. But after the injury and four months in rehab, and a craniotomy, he was no longer able to take care of himself, feed himself, clothe himself. I mean, he needed to be supervised like a second grader would need to be supervised. And so he moved back in with his dad and stepmom, and they would never leave him alone in the house. There would always be somebody there.

So what I started doing in both of these cases was proving that the person would never live independently — that they were going to need attendant care, whether it was institutionally provided attendant care, or the type of people that come and let them live in their own home, or some combination of those things. I’m proving all of these things that are supporting what’s ultimately a $20 or $30 million life care plan to take care of this 24-year-old until the end of his life expectancy, 40 or 50 years later — proving it so well that I’m now also proving he lacks capacity.

And I’m worried about, okay, so what do I need to do in that case? I don’t know that my ratification of an existing contract, or the next friend rule, or any of those things are going to pass muster. I think I need a guardianship in that case. Have I just proven myself into a scenario where I must have a guardianship?

[17:57] Price Johnson: Possibly. Here are a couple of unique things. And again, obviously you and I practice in Texas, so I’ll refer to Texas law, but I think colleagues in other states that are watching this will know their own statutes and rules and will find it very similar.

So in Texas — and here’s what I see — first of all, I see lawyers on the defense side come in all the time, and they don’t do anything because they don’t know to. That doesn’t mean you’ve skated and you’re fine, because it’s your problem of not having a client at the end of the day. Let’s say you do win the case or get a big recovery, and someone comes in and goes, “That’s fantastic. But your contract — you don’t have a legitimate contract. You never had it signed by anybody.” Well, okay, maybe you have a quantum meruit case and claim, but that’s not really why you took the case, is it, Tom? Nor did you take it to then fight to recover a fee that you have well earned. So you don’t want to be in that situation.

So here’s a couple of things. By coming in and putting on all of your evidence that your person lacks capacity and lacks it permanently, you may very well be putting yourself in that position. So what you should be doing is working behind the scenes with someone like myself, who is getting a guardianship, so that you can come in and then substitute that guardian in.

And I am confident that this works this way in most states; I’d be shocked if it doesn’t. If you have filed suit on behalf of your incapacitated person in their individual capacity, or someone as next friend has done that, timely, before limitations expires, then even after limitations expires, it should relate back to your initial filing. And the reason for that is because it’s a capacity issue. It’s not a standing issue.

Now, you need to check your state, and check your state carefully. In Texas, we have this very handy case from 2005 from our Texas Supreme Court — Austin Nursing Center, Inc. v. Lovato. We all call the case Lovato. And it dealt with this issue, where — it was a deceased person — they filed as administrator of the estate before limitations, but they actually didn’t get appointed administrator until after limitations. And the defense challenged it and said, “No, no, they lacked standing. They didn’t have standing. Standing is not waivable, and they blew it, and limitations expired.” The Supreme Court came in, in Lovato, and said, “Not so fast. It’s not standing; it’s capacity. Capacity is waivable, and it’s curable.” The cure is getting the guardian, getting the administrator. And that same case talks about the relation-back theory. And the relation-back theory literally means your subsequent filing relates back to the date of the initial filing, and you’re fine.

[20:41] Tom Crosley: Let me expand a little bit on this guardianship and probate issue. Something comes up in every single case where I have a severe case and, let’s say, it’s time to settle the case. Maybe the trial is a week or two away. Maybe it’s tens of millions of dollars at stake. The question that often comes up is: Who gives me the authority to settle the case on behalf of the client? And then later, who approves my attorney fee, and is my fee subject to review and/or reduction by a probate judge?

[21:31] Price Johnson: Excellent questions, and ones plaintiff’s lawyers need to be very well aware of. I see this a lot. They know they need to come hire me to either set up a probate when they have a deceased person, or the guardianship when they have a TBI case like we’re here to talk about. And I’ll go file the guardianship, or I will have somebody appointed as the executor or administrator of the estate. And the plaintiff’s lawyers say, “I’m done. I’m done with Price. It’s all over. I’ve got what I need.” And we just move on. Or in a guardianship, I go get the guardian of the estate appointed, and they think, “I’m done. I’m good. I’m golden.” No, no, no, no. Nothing could be further from the truth. And this is exactly where you’re leading me, of course.

Unless it is a scenario where there’s a deceased person that has a will, or we’re able to get an independent administration — “independent” literally means independent of court oversight — then there’s very little, if anything, you need to go back to the court for or seek approval for. Guardianships are by definition dependent. There is no such thing as an independent guardianship anywhere, to my knowledge. Certainly not in Texas.

So — dependent on what? Court approval. Of what? Darn near everything. I call it the “mother, may I.” You have to go back to the court every time and say “mother, may I” and seek approval. And mom either says yes or no, and mom calls the shots. That’s how it goes.

As a personal injury lawyer, what colleagues need to do is keep their probate — in this case, their guardianship — lawyer informed. I tell all my PI lawyers, “Hey, listen, when you guys have a mediation coming up, or you think you’re getting close to settlement or something, call us. Call me.” Don’t tell me, “Hey, we settled this three months ago. It’s all signed. The money’s been disbursed, and we’re good. We’re done with the case.” Because that will cause problems — including you having to refund your fees to the probate court, to be held in suspense until they decide what to do with them. Not a fun position.

In these scenarios, remember, guardianships are dependent administrations. The guardianship order — if you hire someone like me, for example — is going to give the guardian, whether temporary or permanent, authority to engage counsel and pursue the litigation, and it will also probably give them authority to enter into settlement negotiations. There are still several things that have to be approved. Hopefully we’re thinking ahead, and we will go ahead and simultaneously get your engagement agreement approved and your fee approved.

Don’t presume your fee is automatically approved. Fees of a third are generally always approved. In fact, in certain situations, by statute in Texas, the judges didn’t have authority to deny a one-third contingent fee. Anything over a third does require court approval. Some of them think one-third fees are outrageous. Thankfully, the legislature has helped us with that, at least in Texas.

So you need to be prepared, and you need to prepare your guardianship lawyer. Don’t let them go down there unprepared — especially the many that don’t know they need to be prepared — on why your case is unique. For example, a medical malpractice case or a TBI-type case — it’s not your run-of-the-mill fender bender car wreck. It’s not the same thing. You don’t go in there with a police report, put your witness on, and go win your case. You have experts you put on, and you have life care planners, and you have all these other people — psychologists, neuropsychologists — that you put on and deal with.

It is always critically important to know that you’ve got to continue to go back to the court to get your engagement approved, your engagement fee approved, and your settlement approved when it’s settled. And also keep in mind, if there are other claims by other parties — for example, a spouse with a loss of consortium claim, or whatever the case may be — the court wants to scrutinize that. The probate court’s sole interest is going to be either the ward, in the guardianship, or the estate, in a deceased party’s case.

Your question is very poignant and prescient: you have to keep all this stuff in mind as a plaintiff’s lawyer. Keep your guardianship or probate lawyer informed of how your case is progressing, so they can do what they need to do to help make sure your client and your firm and your fee are protected — which, at the end of the day, I think is important.

[26:26] Tom Crosley: Well, I’m gonna share with you two stories. First, the 24-year-old young man that I was telling you about with the bicycle injury. In his case, I sought the guardianship early, while we were still early in the litigation. And I had heard horror stories about probate judges later, in mega cases like that, cutting the fee from 40% to a third. I didn’t want to put myself in a position of having that decision deferred until the case was successfully completed, because there was a lot of risk in the case. There was significant contributory negligence by the bicyclist. It was a case that could be lost outright. I was spending hundreds of thousands of dollars and, I don’t know, more than a thousand hours on the case.

And so what I really wanted was to have my contract approved in advance as a contingency fee contract. Because, frankly, the difference between one-third and 40%, I think, is to make up for the investment risk we have in the case, because we’re advancing expenses. I tell people all the time that if the client is paying all the expenses necessary to prosecute the case, I’m happy with a one-third fee. If I instead am fronting all the expenses necessary to prosecute the case, and I don’t get that money back if I don’t win, then that’s a 40% fee. To me, that is my distinction between those two things.

So I didn’t want to be in a situation where I get to the end, and now I’ve successfully navigated the minefield and I have a $20 million settlement, or whatever the number is, and now a judge says, “You know, I’m going to cut your fee by a couple of million dollars, down to a third.” So in that one, rather — quite easily, frankly — it’s quite easy to get that normal contingency fee contract approved at 40% when the work is yet to be done and the risk is yet to be navigated. Any criticism or concerns or comments about what I’ve just laid out?

[28:29] Price Johnson: No comments or criticisms, other than that what you’re doing is perfect, every single time. Here’s my answer to your first question, and here’s how I’ll rephrase your question: At what stage do I get my engagement agreement approved? Always, 100% of the time, without exception: the beginning. To do anything else is foolish.

[28:50] Tom Crosley: Often, Price, when we do settle these cases involving severely brain-injured clients, the court appoints an ad litem attorney, whether there is or isn’t a guardianship. Sometimes there’s an ad litem for the guardianship as well, and an ad litem for the settlement of the case, if that was in a different court than the probate court where the guardianship is happening. So can you talk to us about ad litems and the scenarios that we’re likely to face in these kinds of cases?

[29:19] Price Johnson: Absolutely. And good questions you brought up, because guardianships are unique, and this is another reason not to wait on the guardianship. The fewer people monkeying with your case and your settlement, the better — especially the fewer people that don’t have a clue how to spell TBI or PI. Okay? Because they can’t. And you think I’m being facetious, but not by much.

In a guardianship case, you get an attorney ad litem appointed and a guardian ad litem appointed — both. Those are not to be confused with the attorney ad litem that’s appointed in the personal injury court, for the personal injury side of it — in your district court, I’ll call it. So in Texas, we have Rule 173. That’s your attorney ad litem that gets appointed in a personal injury case, frequently for a minor, but also for any incapacitated person. And their job is to go in and say, “Is this settlement in the best interest of the [blank] — the child, the proposed ward, the potentially incapacitated person?” And the real job is to go and ask, “Well, is there someone in conflict?” Like if there were parents who have a claim for medical expenses and a minor who’s got the personal injury claim. That’s their job. It’s a very limited role.

In the guardianship court, the attorney ad litem and guardian ad litem have much, much, much more significant roles, and can stick their noses into a lot of stuff, for good reason. In fact, the first role the attorney ad litem has is to file a general denial when the guardianship is filed. A lot of lawyers don’t realize that — that the court appoints a lawyer for the proposed ward to come in and file a general denial, which puts me to my proof. It’s an adversarial proceeding. Although if the person clearly lacks capacity, usually it’s not that adversarial. Usually my attorney ad litem will come in and go, “Yeah, I went and visited with the person, talked to the doctor, read the medical records. Yeah.” So they’ll go in and they’ll oppose it, but no evidence to oppose it.

If we get the guardianship done — once the guardianship’s done, the attorney ad litem and guardian ad litem roles are largely gone. Then we’re just dealing with the guardianship court’s investigators, coordinators, clerks, and people like that. So you won’t have to fight that fight with as many people if you get the guardianship done first.

If you don’t get the guardianship done first — like the scenario you gave me a moment ago, where the case was brought to you and you got it settled, but the guardianship hadn’t been done — and especially if you’re trying to do the guardianship after the fact, you’re going to have the probate judge, you’re going to have the court’s investigator, you’re going to have the attorney ad litem, and you’re going to have the guardian ad litem, all appointed by the probate court, all answerable to the probate judge, all up in your business, second-guessing and Monday-morning quarterbacking you. It’s not going to go well, generally. So that’s another reason to get this stuff done, and done timely. Just keep in mind that the roles are very different.

But once the court appoints a guardian — particularly a permanent guardian — at that point the guardian of the estate becomes your client, and they’re really solely answerable to the probate judge. And then you get everything approved along the way, like we talked about.

[32:30] Tom Crosley: One other quick aside. In the proof of the guardianship, we’ve got to put on medical proof of the incapacity — for financial decisions, for medical decisions, et cetera, right? Do you see any pitfalls with using an expert witness retained by the plaintiff attorney to make that proof?

[32:50] Price Johnson: For the incapacity? I do not at all. In guardianship proceedings — this is not required in a temporary, but it is in a permanent — we have what we call a CME, a Certified Medical Examination. It’s usually a doctor; now a nurse practitioner can also do it. They go through and fill these forms out and say whether or not this person has capacity, medical or financial — the incapacity questions, or standards.

So we have that, so we don’t really use experts so much in our guardianship proceedings. It’s rare. But in my contested probate proceedings, my will contests, we use them all the time. I use neuropsychologists all the time. Generally, I am doing a post-mortem capacity evaluation, because my person’s dead. You at least have the advantage of being able to do a capacity evaluation on a living person, which I rarely get in my practice.

But absolutely, there’s no problem with you hiring them. There’s no problem with you using them. And if you have the guardianship, you’ll have the ability to say, “Yeah, and we also have the guardianship CME that the doctor did for the court. We have this court investigator.” And for goodness’ sake, at that point you have a court that has made a judicial determination — a final judicial determination, by the only court on the planet that can make this determination — that this person lacks capacity. Now, it won’t tell you the source of the incapacity, right?

[34:20] Tom Crosley: Yeah. You bring up another point that we can build into our proof, then: that there’s already been a court determination that this person lacks capacity and needs others to make decisions for them. And that kind of supports my long-term attendant care model.

[34:32] Price Johnson: You get a permanent guardianship, you have a final judicial determination by the only court on the planet that can do it. Nobody can come in and second-guess them, as long as the plenary periods have passed and everything. If you have a final judicial determination of incapacity and a permanent guardianship, it is permanent. There are mechanisms to go have a permanent guardianship undone, but you’ve got to go prove that, and usually the proof doesn’t exist until later, if ever.

[34:58] Tom Crosley: Okay. So let’s recap the hierarchy of needs for a TBI lawyer representing a severely injured client.

[35:06] Price Johnson: Absolutely. Someone walks in your door. The person that walks in your door is presumably not the injured person that has the TBI. If the person with the TBI is there, you do your evaluation, you do what you can. But presuming that person is not, figure out what the relationship is. Obviously, the closer the relationship, the better. Sometimes you may get a call from a cousin, right? The cousin may be the family lawyer, and so they had the cousin make the call. Okay, well, the cousin’s not who you need signing the contract. So get the closest family member you can — parent, spouse, or adult child, as the case may be, in my opinion. Sign that engagement agreement in whatever version of a next friend–type statute you have.

Also inquire immediately: is there any kind of prior documentation — a power of attorney — that this individual may have ever signed? It’s probably not going to exist. And I would certainly think there’s never going to be a preexisting guardianship; that would likely not be the case.

And then find out: Okay, where is this person? What’s their capacity? Follow up and find these things out, because as quickly as you can, you want to try to get this contract ratified by the ultimate client. If they have lucid moments, find out. Go visit; see what the scenario and situation is. Are they likely to be recovering, hopefully, and going home in 10 days to two weeks? Or is this a much more permanent scenario, and they’re in a six-month medically induced coma for their brain swelling to reduce? I mean, you’ve got to find these things out.

And then do not wait if you feel like you need to do a guardianship. Guardianships aren’t fast. The fastest you’re probably going to get a temporary guardianship done in most states is probably 30 days — and that’s temporary. Maybe faster, maybe a couple of weeks; that’s rare. A permanent guardianship in most states is going to take you probably at least 60 days. This stuff takes time.

And the number one thing I probably should have started with is: call your probate lawyer, call your guardianship lawyer, start getting them up to speed and asking questions right away, because they may be able to help give you guidance on what to do.

[37:16] Tom Crosley: Yeah. Thank you, Price. I think that’s good advice. I mean, potentially it saves millions of dollars in legal fees and risk. If we don’t do this right, we run the risk of having our entire contract voided, or perhaps our fee limited to something less than the contracted amount. So I don’t think we would knowingly enter into that risk, right, without ameliorating it by getting somebody involved to do it right for us.

If I left our listeners with one piece of advice, it would be: when you have a severely injured client who may lack capacity — not “do they,” but “they might” — then an early call you make is to somebody who is familiar with probate and guardianship law, so they can make sure you navigate that early in your case and get your contract approved, so that later, when you try or settle your case, your ducks are in a row.

[38:15] Price Johnson: Absolutely. It will help your client, and it will help you protect your fee, which you well earned.

[38:22] Tom Crosley: All right, man. Well, thank you so much for spending time with us today and sharing your wisdom. I’d like you to share your contact info, because if somebody were asking me, “Who do I call?” your name is right there at the top of the list. So how do people get in touch with you?

[38:35] Price Johnson: My name’s kind of unique: Price Johnson. You could pretty much just Google “Price Johnson Dallas lawyer” or “Texas lawyer,” and I’m probably going to pop right up. Our phone number is 214-468-9000 — that’s our main office. Our main office is in Dallas, and we practice all over the state.

[38:56] Tom Crosley: Price, thank you very much for joining us today and sharing your knowledge with us.

Announcer: This has been Winning the TBI Case. I’m Tom Crosley. If today’s episode helps you see your current case in a new light, share it with a colleague who’s facing the same challenges in a case. Subscribe wherever you get your podcasts, and join our community of trial lawyers who refuse to settle for average results. This has been Winning the TBI Case: strategy, science, and storytelling, with Tom Crosley.