Guardianship

Question 1

Guardian of the Person. rights and duties

Answer 1

take charge of ward

duty to provide care, supervision, protection

duty to provide clothing, food, medical care, shelter

power to consent to medical/psychiatric

Question 2

Guardian of the estate. rights and duties

Answer 2

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

Question 3

Appointing a Guardian

Answer 3

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

Question 4

Bonds Required

Answer 4

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

Question 5

Kid’s Choice of Guardian

Answer 5

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

Question 6

Venues for Guardian appointment

Answer 6

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

Question 7

Standing to Commence Guardianship Proceedings

Answer 7

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

Question 8

Eligible Guardians

Answer 8

surviving parent (presumed kids best interest but not conclusive)

spouse

grandparent

next of kin to nearest degree

general test: best interest of kid

Question 9

when can 2 ppl be co-guardians?

Answer 9

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

Question 10

people who can’t be guardians

Answer 10

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

Question 11

limited guardianship

Answer 11

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

Question 12

safeguards to make sure the wards rights are protected

Answer 12

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)

Question 13

Letters of Guardianship

Answer 13

if guardian appointed letters of guardianship (serves same functions as letters testamentary in estate admin proceeding) it’s valid for 16 months

Question 14

actions guardian must take w/in 60 days after appointment

Answer 14

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

Question 15

court can remove guardian ex part (w/o notice or hearing) if guardian:

Answer 15

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

Question 16

Duty to Invest as Prudent Person

Answer 16

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

Question 17

Pre-Approved Investments

Answer 17

• bonds of the US Gov
• bonds of the Tex Gov or political subdivision thereof
• interest bearing accounts insured by the FDIC

Question 18

Sale of Property of Estate

Answer 18

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

Question 19

what can guardians do when the guardianship gets too hard?

Answer 19

terminate if burdensome in relation to income

100K or less pay into county registry or
court created management trust

Question 20

court created management trust

Answer 20

court determines trust is no longer needed or person dies

Question 21

guardian to receive funds from governmental source

Answer 21

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

Question 22

Court Approved Gifts

Answer 22

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

Question 23

3 Requirements to be appointed Guardian of Person/Estate

then what does the applicant have to show (3)

Answer 23

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

Question 24

Who can’t be a guardian

Answer 24

conduct is notoriously bad
b/c of your inexperience you can’t handle kid/estate
court finds you unstable

Question 25

first thing guardian must do

Answer 25

take oath of office and post fiduciary bond w/in 20 days appointment

Question 26

judge removing guardians

Answer 26

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

Question 27

if guardian wants to fight removal

Answer 27

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

Question 28

if someone under guardianship gets better

Answer 28

petition the court to order a finding that he is no longer incapacitated

court must find he’s better by preponderance of the evidence

Question 29

if the issue is who wins between person w/power of attorney and court appointed guardian

Answer 29

durable power of attorney is revoked when the guardian of the estate is appointed

Question 30

duties of the guardian of the person

Answer 30

care, control, protection, supervisions, possession, clothing, food, shelter, medical, domicile, psychiatric, surgical