Guardianship Flashcards
Guardian of the Person. rights and duties
take charge of ward
duty to provide care, supervision, protection
duty to provide clothing, food, medical care, shelter
power to consent to medical/psychiatric
Guardian of the estate. rights and duties
manage ward’s property
enforce wards obligations
bring/defend suits by/against ward
only appointed guardian of the estate (not parents) can deal with kids bequeathed property
(but if the value of the kid’s entire interest in all the property he inherited is less than 100K the parent/guardian can get court order authorizing the sale w/o appointment of guardian. then the money goes into court registry
Appointing a Guardian
the last surviving parent may by will/declaration appoint a guardian of the parent’s minor or incapacitated kid
–court will appoint unless court finds person disqualified, dead, not in kids best interest
for a written declaration the req are same as wills
- -holographic: wholly in handwriting/signed
- -typed: signed and 2 witnesses sign over 14
Bonds Required
guardian of person: doesn’t have to give fiduciary bond if the will waives it
guardian of the estate: must give bond, can’t be waived by will
Kid’s Choice of Guardian
kid 12+ can write to the court saying who he would like as a guardian
–court will go with it unless it’s not in the kids best interest
Venues for Guardian appointment
appointment of guardian for minor: where parent resides
appointment of guardian for incapacitated: where the ward lives or principal estate located
appointment of guardian named in parent’s will: where will probated or county where appointee resides
Standing to Commence Guardianship Proceedings
ex: to seek adjudication that someone is incapacitated and needs guardian
any person has standing to bring it b/c want it brought to court’s attention
–if brought in good faith, person who brought it can get attorney’s fees from ward’s estate
Eligible Guardians
surviving parent (presumed kids best interest but not conclusive)
spouse
grandparent
next of kin to nearest degree
general test: best interest of kid
when can 2 ppl be co-guardians?
generally they can’t. can if
husband and wife
joint managing conservators of kid
appointed guardians in another state
parents of adult incapacitated kid though not married
people who can’t be guardians
incapacitated
conflict of interest
inexperience, lack of education, other things that make person incapable of prudent management
convicted of sex assault, injury to kid or elderly
limited guardianship
where person lacks capacity to do some but not all of the tasks necessary to care for himself/manage property
order appointing the guardian must specify:
- powers, duties, and limitations of the guardian and
- amount of the wards funds that can be expended for the ward’s care w/o court approval
if ward regains some of his cognitive skills, the ward/interested person can petition to have the guardianship modified
safeguards to make sure the wards rights are protected
court appoint attorney ad litem to represent the proposed ward
court must appoint court investigator
court must let the proposed ward be present at trial (if that’s possible)
Letters of Guardianship
if guardian appointed letters of guardianship (serves same functions as letters testamentary in estate admin proceeding) it’s valid for 16 months
actions guardian must take w/in 60 days after appointment
qualify by taking oath and posting fiduciary w/in 20 days
publish notice of admin in newspaper of gen circulation w/in 1 month
file inventory of estate w/in 30 days
file application for monthly allowance to be expended on the wards behalf w/in 30 days
court can remove guardian ex part (w/o notice or hearing) if guardian:
fails to qualify by giving oath and bond w/in 20 days or dais to file inventory
moves from texas or absent
acted cruelly
removed assets from texas
Duty to Invest as Prudent Person
duty to invest funds/assets not immediately needed to ward’s education, support, or maintenance
guardian must manage/invest estate as prudent person would manage his own affairs considering:
- anticipated costs of supporting ward
- ward’s age, education, current income
- size and nature of estate
Pre-Approved Investments
- bonds of the US Gov
- bonds of the Tex Gov or political subdivision thereof
- interest bearing accounts insured by the FDIC
Sale of Property of Estate
sale of real/personal property of estate req court approval, except for sale of securities pursuant to court approval investment plan, can be made only for the purpose of
- paying debts
- maintenance of ward
- unproductive property
what can guardians do when the guardianship gets too hard?
terminate if burdensome in relation to income
100K or less pay into county registry or
court created management trust
court created management trust
court determines trust is no longer needed or person dies
guardian to receive funds from governmental source
appointed to get pension payments on wards behalf w/o court approval, if amount of disability pension is: 12K or less it can be paid to guardian
Court Approved Gifts
for tax purses, 14K annual exclusion on gifts (per donee) is ok w/o court
court can authorize gift to enable ward to qualify for gov. benefits
guardian of estate can apply for order that compels person in possession of will, trust, or estate planning doc. to deliver copy to court for purposes of dining gift recipient
court can approve charitable gift out of income if:
gift will qualify for income tax charitable deduction and net income from estate probably more than 25K
gift not exceed 20% wards net income for year
3 Requirements to be appointed Guardian of Person/Estate
then what does the applicant have to show (3)
to be appointed guardian of the ward or person the applicant you must show by c/c:
- ward incapacitated
- in ward’s best interest to have guardian appointed
- ward’s right/property will be protected by appointment of the guardian
then, applicant must show by preponderance of the evidence that
-ward is either totally w/o capacity or only has some capacity to care for himself and manage property
–applicant is eligible to be appointed guardian
-naming applicant is in wards best interest
Who can’t be a guardian
conduct is notoriously bad
b/c of your inexperience you can’t handle kid/estate
court finds you unstable
first thing guardian must do
take oath of office and post fiduciary bond w/in 20 days appointment
judge removing guardians
judge can remove a guardian w/o a hearing if
- guardian fails to qualify or post bond
- guardian moves out of state
- c/c evidence the guardian neglected to educate or maintain the ward or misapplied, embezzled or removed funds
if guardian wants to fight removal
if the ground is that the guardian misapplied estate funds and removed guardianship property from Texas:
-w/in 10 days can file for a hearing
for all other grounds can file application for reinstatement though it’s been longer than 10 days
if someone under guardianship gets better
petition the court to order a finding that he is no longer incapacitated
court must find he’s better by preponderance of the evidence
if the issue is who wins between person w/power of attorney and court appointed guardian
durable power of attorney is revoked when the guardian of the estate is appointed
duties of the guardian of the person
care, control, protection, supervisions, possession, clothing, food, shelter, medical, domicile, psychiatric, surgical
