Guardianship Flashcards
Generally what must happen at the hearing for a person to be appointed a guardian?
- 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)
What is the required evidentiary showing for a finding of “incapacity?”
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
What is required for a physician’s report to be effective at the hearing for appointing a guardian?
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
When is a written declaration that G should be minor W’s guardian going to be effective?
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.
How recent must a physician’s examination of W be?
Within the past 120 days
GUARDIAN OF PERSON - RIGHTS/DUTIES
Care, supervision, and protection
Food, clothing, shelter, medical care
Can give CONSENT to medical/psychiatric treatment on ward’s behalf
GUARDIAN OF ESTATE - RIGHTS/DUTIES
Possess and manage ward’s property
Enforce obligations, sue and defend on behalf of ward
- Reasonably PRUDENT person standard
JURISDICTION AND VENUE
Proceeding in rem
VENUE - Appt of guardian
- Minor ward
- Incapacitated adult
- Appt by WILL
- Can TRANSFER for “__________”
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”
WHO MAY BE APPOINTED GUARDIAN
MINOR ward
Incapacitated adult
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
JOINT GUARDIANS
Generally, only one person
Joint permitted IF:
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
NON-RESIDENT GUARDIAN
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.
PRIVATE PROFESSIONAL GUARDIAN
These are permitted IF:
PRIVATE PROFESSIONAL GUARDIAN
These are permitted IF:
- It’s a private corp IN THE BUSINESS OF providing guardianships
- Registered and certified
DISQUALIFIED PERSONS
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
RESIGNATION
GOE
GOP
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
REMOVAL
Without notice
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
REMOVAL
After notice and hearing
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
Reinstatement after removal
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
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
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
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:
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.
G POWERS - NO COURT ORDER NEEDED
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
EDUCATION AND MAINTENANCE EXPENSES
- IF the PARENT is G:
Application for a MONTHLY ALLOWANCE:
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
CREDITORS’ CLAIMS
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.
ACCOUNTINGS AND REPORTS
GOE
GOP
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
COMPENSATION
GOE
GOP
G’s are entitled to REIMBURSEMENT for:
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.
