guardianship Flashcards
- Venue for appointment of guardian for minor:
For guardian for incapacitated adult:
For appointment of guardian named in parent’s will:
County where parents (or parent who is managing conservator) reside.
County where proposed ward resides or county where principal estate is located.
County where will was probated or county where appointee resides. [Feb. 2015] If parents die simultaneously and neither had designated guardian, county where parents resided. Hearings on any guardianship matter can be held at any suitable location in the county unless ward, proposed ward or his attorney requests that the hearing be held at the county courthouse.
Who is eligible to be appointed guardian of the person and estate of a minor?
Parents or surviving parent. As noted above, last surviving parent can name guardian of the child. [July 1999] It is presumed that person designated by parent is in child’s best interest, but [July 2005, Feb. 2010] presumption is not conclusive. If not designated by parent, (i) [Feb. 2015] grandparent, (ii) next of kin in nearest degree of kinship. [July 2009: On the facts, appropriate to name (designated) uncle as guardian of person but not as guardian of estate]
Who is eligible to be appointed guardian of the person and estate of an incapacitated adult?
[1] Person named by last surviving parent in will or other written declaration.
[2] Person named in written, witnessed Designation of Guardian Before Need Arises. [July 1999] Designation is prima facie evidence that named person will serve the proposed ward’s best interest, but court may decline to appoint the person if (e.g.,) she is asserting a claim against the proposed ward’s estate or otherwise is not suitable. [Feb. 2007: where named person subsequently convicted of bank fraud and son was heavily indebted and considering bankruptcy, Bank should be appointed guardian of estate.]
[3] If no such declaration: (i) spouse, (ii) next of kin in nearest degree of kinship. [July 1999]
- the Estates Code urges the court to order
The order appointing a guardian must specify
limited guardianships whenever possible—where the person lacks the capacity to do some, but not all, of the tasks necessary to care for himself and manage his property.
(i) the powers, duties, and limitations of the guardian, (ii) the amount of the ward’s funds that can be expended for the ward’s care without court approval, Before appointing a guardian, and (iii) clear and convincing evidence showed that alternatives to a guardianship (durable power of attorney, medical power of attorney, management trust, joint bank account etc.) and available supports and services were considered and determined not to be feasible.
C&C for what?
It is presumed that ward retains capacity to ?
evidentiary standard as to whether (i) the proposed ward is incapacitated. (ii) a guardian should be appointed, and (iii) alternatives to a guardianship and available supports and services were considered and determined not to be feasible
2015 statute: It is presumed that ward retains capacity to make personal decisions regarding his or her residence.
- 12-year-old Joey is about to receive $2,000,000 in a personal injury settlement negotiated by his lawyer. What should be done to handle this vast amount of money? parents as guardian? [Feb. 2013: each of two children inherited $10 million.]
court created management trust
1) Since over $150,000 is involved, bank or trust company must be appointed trustee.
2) Trust can be drafted so as to continue until Joey attains age 25.
Sister was appointed guardian of Dad’s person and estate. Sister moved Dad into her home, and has refused Brother’s repeated requests to visit Dad or to find out what is going on. What should Brother do?
2015 statute: Relative of ward may file a petition requesting access to the ward, including opportunity to establish communication and visitation rights. After notice and hearing, court may enter order prohibiting guardian from preventing relative’s access to the ward and setting visitation terms. Court may award court costs and attorney’s fees to the prevailing party, but such costs and fees may not be paid from the ward’s estate.
Guardian must inform relatives if ward dies, is admitted to an acute care medical facility, has residence change, or is staying at a location other than his residence for over one week.
