Guardianship Flashcards
What is the standard for establishing a guardianship?
The court must find by clear and convincing evidence that the ward is incapacitated, it is in the ward’s best interest to have a guardian appointed, and the ward’s rights and property will be protected by the appointment of a guardian.
The finding of incapacity must be made based on more than isolated instances of bad judgment; repeated acts within the previous six months indicating incapacity are required.
In order to prove incapacity of an adult proposed ward, what must the petitioner provide?
A written letter or certificate from a physician licensed in Texas that is dated not earlier than 120 days before the filing of the application and based on an examination that the physician performed not earlier than 120 days before the date of the filing of the application.
What must the letter or certificate contain?
(i) describe the nature, degree, and severity of incapacity; (ii) provide an evaluation of the proposed ward’s physical condition and mental function;
(iii) state how or in what manner the proposed ward’s ability to make or communicate responsible decisions concerning himself is affected by the person’s physical or mental health;
(iv) state whether any current medication affects the demeanor of the proposed ward;
(v) describe the physical and mental conditions underlying a diagnosis of mental disability; and
(vi) include other information required by the court.
Who has the burden of proof in a guardianship proceeding?
Person alleging incapacity
Incapacitated adult
a person over 18 years of age who is substantially unable to provide food, shelter, clothing, or to care for his physical health, or manage his financial affairs due to a mental/physical condition
