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BAR EXAM > Guardianship > Flashcards

Guardianship Flashcards

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1
Q

Generally what must happen at the hearing for a person to be appointed a guardian?

A
  • G was appointed an atty ad litem
  • G was PRESENT at the hearing (unless mentally retarded)

Evidentiary showings:

By CLEAR AND CONVINCING EVIDENCE:
- Incapacity
- Guardianship is in W's best interest
By PREPONDERANCE of the evidence:
- Lack of capacity to care for himself

Physician’s report MUST be filed
- Visit must have been recent (last 120 days)

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2
Q

What is the required evidentiary showing for a finding of “incapacity?”

A

CLEAR AND CONVINCING EVIDENCE

  • Unable to clothe, feed, provide shelter for himself
  • Unable to manage financial affairs
  • Must be several months of recurring behavior—not just a few isolated incidents of negligence or bad decisions
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3
Q

What is required for a physician’s report to be effective at the hearing for appointing a guardian?

A

REQUIRED:

  • Must be based on a recent examination, within 120 days
  • Must be a WRITTEN REPORT filed with the court

Should support a finding that there is CLEAR AND CONVINCING evidence that W is incapacitated.

  • SPECIFIC evidence relating to W’s ability to care for himself and manage his financial affairs
  • Based on RECURRING conduct over several months, not just isolated incidents
  • Cannot be CONCLUSORY
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4
Q

When is a written declaration that G should be minor W’s guardian going to be effective?

A

ONLY if by W’s LAST SURVIVING PARENT

Must meet WILL FORMALITIES:

  • Entirely in T’s handwriting (like a holographic will), OR attested to by 2 witnesses
  • Signed by T

G must not be otherwise disqualified

  • Even then, it’s not conclusive. Still has to be in the W’s best interest.
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5
Q

How recent must a physician’s examination of W be?

A

Within the past 120 days

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6
Q

GUARDIAN OF PERSON - RIGHTS/DUTIES

A

Care, supervision, and protection
Food, clothing, shelter, medical care

Can give CONSENT to medical/psychiatric treatment on ward’s behalf

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7
Q

GUARDIAN OF ESTATE - RIGHTS/DUTIES

A

Possess and manage ward’s property
Enforce obligations, sue and defend on behalf of ward

  • Reasonably PRUDENT person standard
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8
Q

JURISDICTION AND VENUE

Proceeding in rem

VENUE - Appt of guardian

  • Minor ward
  • Incapacitated adult
  • Appt by WILL
  • Can TRANSFER for “__________”
A

JURISDICTION AND VENUE

Proceeding in rem

  • Based on the location of the property (for GOE)
  • Hearings may be held in any suitable location in the county

(Otherwise, same as for ESTATE ADMIN)

VENUE - Appt of guardian

  • Minor ward
    • County where the PARENTS (SMC, or JMC with more physical possession rights) reside
    • If both parents are dead, where last surviving parent lived
  • Incapacitated adult
    • Ward’s county
    • Principal estate county
  • Appt by WILL
    • Will was probated
    • Where G lives
  • Initial filing has jdx
  • Can TRANSFER for “sufficient reasons”
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9
Q

WHO MAY BE APPOINTED GUARDIAN

MINOR ward

Incapacitated adult

A

WHO MAY BE APPOINTED GUARDIAN

MINOR ward
MINOR ward
- Statutory order of priority:
- Living parents, if any
- Person appointed by last surviving parent
- Nearest kin
- Any other suitable person
- If more than one child, need a separate ESTATE for each—but one GOE can manage them.
- Could should consider child’s choice, if 12+yo

Incapacitated adult

  • Statutory order of priority:
    • Written appointment (by W or last surviving parent)
    • Spouse is entitled to preference
    • Nearest of kin
    • Any other suitable person
  • Court must make a REASONABLE EFFORT to accommodate the ward’s CHOICE
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10
Q

JOINT GUARDIANS

Generally, only one person

Joint permitted IF:

A

JOINT GUARDIANS

Generally, only one person

Joint permitted IF:

  • Husband and wife
  • Parents (even if not married)
  • JMC’s of child
  • Appointed joint in another state
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11
Q

NON-RESIDENT GUARDIAN

A

NON-RESIDENT GUARDIAN

Non-resident guardian can utilize a TX resident as AGENT to deal with ward’s property in TX. Uses POWER OF ATTORNEY.

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12
Q

PRIVATE PROFESSIONAL GUARDIAN

These are permitted IF:

A

PRIVATE PROFESSIONAL GUARDIAN

These are permitted IF:

  • It’s a private corp IN THE BUSINESS OF providing guardianships
  • Registered and certified
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13
Q

DISQUALIFIED PERSONS

A

DISQUALIFIED PERSONS

  • Lacks capacity
  • Lacks experience, not capable of prudently managing the person/estate
  • A person who is notoriously bad
  • Conflict of interest
  • Non-resident (who doesn’t have a registered agent)
  • Expressly disqualified in the ward’s prior written declaration
  • Any person who the court finds unsuitable
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14
Q

RESIGNATION

GOE

GOP

A

RESIGNATION

GOE
- File WRITTEN application with a VERIFIED FINAL ACCOUNT

GOP

  • File WRITTEN application
  • File a REPORT of the ward’s condition

HEARING is held—G must show that she no longer retains any estate property

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15
Q

REMOVAL

Without notice

A

REMOVAL

Without notice

  • Fails to take oath (within 20 days)
  • Fails to post bond (within 20 days)
  • Fails to return inventory (within 30 days)
  • Disappears:
    • Moves out of Texas,
    • Absent for 3 months, and
    • Hasn’t appointed an agent for service
  • CLEAR AND CONVINCING EVIDENCE that G has:
    • Neglected or cruelly treated W
    • Neglected to educate or maintain W in condition required
    • Misapplied, embezzled, or removed assets from the state, or is about to do so
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16
Q

REMOVAL

After notice and hearing

A

After notice and hearing

  • SUFFICIENT GROUNDS (note—not clear and convincing evidence) to believe:
    • Misapplied, embezzled, removed assets from state, or about to do so
    • Guilty of gross misconduct or mismanagement
    • Fails to obey court order, or return accounting or inventory
    • Neglected or cruelly treated W
    • Neglected to educate or maintain W in condition required
    • Incapacitated
    • Sentenced to penitentiary
    • Otherwise incapable of performing duties
17
Q

Reinstatement after removal

A

Reinstatement after removal

  • ONLY if removed after NOTICE AND HEARING AND based upon:
    • Mistreated W
    • Misapplied, embezzled, removed assets from state, or about to do so
  • G can file an APPLICATION
    • Must show that she DID NOT do what she was accused of
18
Q

GUARDIAN’S FILINGS

(1) BOND
* Must be filed within ___ DAYS

GOP
- Can be waived if _________

-
- Amount of penalty on the bond:

(2) INVENTORY
* Must be filed AND APPROVED within ___ DAYS

A

GUARDIAN’S FILINGS

BOND

  • Must be filed within 20 DAYS

GOP
- Can be waived if appointed by parents

GOE

  • CANNOT waive
  • BUT a corporate fiduciary is not required to give a bond
  • Amount of penalty on the bond:
    • Value of personal property belonging to W
    • Revenues anticipated to be received from W’s property during the next TWELVE MONTHS

INVENTORY

  • Must be filed AND APPROVED within 20 DAYS
19
Q

INVESTMENTS

  • Must file an INVESTMENT PLAN with the court within ___ DAYS

Guardian has a DUTY to invest all funds not needed for:

Standard of care:

New property:

A

INVESTMENTS

  • Must file an INVESTMENT PLAN with the court within 180 DAYS

Guardian has a DUTY to invest all funds not needed for:

  • Support
  • Education
  • Maintenance of W

Standard of care

  • ORDINARY PRUDENCE
  • Consider the estate as a whole

New property
- G can RETAIN it for ONE YEAR before having to do anything with it—not liable for any depreciation during that time.

20
Q

G POWERS - NO COURT ORDER NEEDED

A

POWERS - NO COURT ORDER NEEDED

  • MOST of G’s powers require a court order

Rent real/personal property for UP TO ONE YEAR

Insure estate property

Pay taxes

Pay debts to release liens on estate property

Vote stocks that are estate property

21
Q

EDUCATION AND MAINTENANCE EXPENSES

  • IF the PARENT is G:

Application for a MONTHLY ALLOWANCE:

A

EDUCATION AND MAINTENANCE EXPENSES

  • IF the PARENT is G, the parent must support G and MAY NOT use G’s estate for a monthly allowance.
  • Unless there is CLEAR AND CONVINCING evidence that parents cannot afford it

Application for a MONTHLY ALLOWANCE

  • Must be filed within 30 DAYS
  • Good faith expenses beyond the allowance are PERMITTED ONLY IF:
    • Good faith
    • Inconvenient or impossible to get a court order first
    • CLEAR AND CONVINCING EVIDENCE that the expenses were reasonable and proper
    • AND
    • W received the benefits

Court can order expenses

22
Q

CREDITORS’ CLAIMS

A

CREDITORS’ CLAIMS

Same basic procedure as in a DEPENDENT ADMINISTRATION

  • Newspaper notice within one month
  • SECURED:
    • Must give personal notice to secured
  • UNSECURED:
    • Notice may state that the claim will be BARRED unless presented within 120 days
  • G must allow/reject claim within 30 days—CR must file suit within 90 DAYS or it’s barred.
23
Q

ACCOUNTINGS AND REPORTS

GOE

GOP

A

ACCOUNTINGS AND REPORTS

GOE - Annual accounting

  • Verified affidavit
  • Claims that have been paid/rejected
  • All receipts and disbursements
  • Description of property administered and now on hand
  • Court CAN WAIVE this requirement IF the estate produces a NEGLIGIBLE OR FIXED INCOME

GOP - Annual reports

  • Receipts and disbursements for support, maintenance, education
  • Describe W’s condition
24
Q

COMPENSATION

GOE

GOP

G’s are entitled to REIMBURSEMENT for:

A

COMPENSATION

GOE

  • REASONABLE compensation
  • E.g. 5% in (G’s INCOME) 5% out

GOP

  • Court determines
  • CANNOT EXCEED 5% of W’s gross income

G’s are entitled to REIMBURSEMENT for ordinary and necessary expenses.

25
Q

TERMINATION OF GUARDIANSHIP

GOE

A

TERMINATION

GOE

  • Minor W becomes an adult, or dies
  • Incapacitated W is no longer incapacitated, or dies
  • Estate has dwindled down to nothing
    • MINOR’s estate = $100k cash or less
  • Estate is now mostly in a trust, so G not necessary
26
Q

MANAGEMENT TRUSTS

  • These are CREATED BY THE COURT

Move the estate into a trust, so it can be managed under the more flexible Trust Code rules.

When possible:

A

MANAGEMENT TRUSTS

When possible:

(1) RICH KIDS: Minor W’s estate is very LARGE and should remain in a trust instead of reverting to W when he turns 18.
(2) Incapacitated W’s estate is LARGE and complex, and should be managed by a corporate fiduciary

27
Q

MANAGEMENT TRUSTS

Trustee

  • Usually a TRUST COMPANY or a BANK with trust powers
  • INDIVIDUAL may be T IF:
A

MANAGEMENT TRUSTS

Trustee

  • Usually a TRUST COMPANY or a BANK with trust powers
  • INDIVIDUAL may be T IF:
    • Trust is less than $150k
    • In W’s best interest
    • AND
    • No corp fiduciary is willing to do it
28
Q

MANAGEMENT TRUSTS

Termination

A

Termination

  • Minor W— No later than AGE 25
  • B’s death
  • No longer incapacitated
29
Q

TEMPORARY GUARDIANS

  • ___ DAYS MAX

Requirements:

Evidentiary test:

A

TEMPORARY GUARDIANS

  • 60 DAYS MAX

Requirements:

  • W needs a guardian IMMEDIATELY
  • Hearing must be held within 10 DAYS
  • Atty ad litem
  • Evidentiary test: “SUBSTANTIAL EVIDENCE”
    • Minor or incapacitated
    • AND
    • IMMINENT DANGER of harm to the person/estate
30
Q

WHEN GUARDIANSHIP IS NOT NEEDED

A

WHEN GUARDIANSHIP IS NOT NEEDED

W owns ONLY COMMUNITY PROPERTY (even if SMCP)—in that case, SS becomes the COMMUNITY ADMINISTRATOR. If W owns any separate property, need a guardianship for that property.

$100,000 cash
- If a TP owes “W” $100,000 OR LESS, they can pay it to the court registry and the court will control disbursements without having to resort to a guardianship

Sale of property - $100,000 or less

  • Proceeds go into the court registry
  • If there is a GOP, but not GOE, the GOP can use this to sell smaller property

Social security benefits
- Don’t need a guardianship to distribute these to “W”

31
Q

What is the evidentiary BOP for determining who should be appointed guardian?

A

Preponderance

32
Q

DETERMINATION OF INCAPACITY

A

DETERMINATION OF INCAPACITY

Must find by CLEAR AND CONVINCING EVIDENCE:

  • Incapacity
    • SIX MONTHS of recurring acts
    • Ability to feed, clothe, shelter himself, care for physical health, manage financial affairs
  • Guardianship is in W’s best interest
  • W’s estate will be protected in a guardianship
33
Q

DETERMINATION OF INCAPACITY

Hearing (procedural):

A

DETERMINATION OF INCAPACITY

Hearing (procedural):

  • Atty ad litem to rep W’s interests
  • Court investigator determines whether a LESS RESTRICTIVE ALTERNATIVE exists
  • Court visitor assesses condition of W
  • Physician’s report: nature, degree, severity of the incapacity
  • W must be PRESENT at the hearing
    • May request a JURY TRIAL
  • After guardianship is imposed, there must be an ANNUAL REVIEW
  • MAY appoint a GUARDIAN ad litem for the process
    • GAL is NOT liable for civil dmgs arising from a recommendation or opinion UNLESS REALLY BAD (malice, grossly negligent, willfully wrongful, etc.)
34
Q

DETERMINATION OF INCAPACITY

Physician’s report
- MUST examine W within _____ DAYS

A

DETERMINATION OF INCAPACITY

Physician’s report

  • MUST examine W within 120 DAYS
  • Submit a written report

BAR EXAM (25 decks)

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