Guardianship Flashcards
Definition: Guardian
A person appointed by the probate court who is charged with the duty of care and management of the person, property, or both, of a minor or an incapacitated adult (ward).
Involves two distinct roles:
1. GUARDIANSHIP OF THE PERSON
2. GUARDIANSHIP OF THE ESTATE
Definition: Minor
A person who is:
(a) under age 18,
(b) who has never been married, and
(c) who has not had the disability of minority removed by court action.
Definition: Incapacitated
An adult who, because of a physical or mental condition, is substantially unable to:
(1) provide food, clothing, or shelter for himself,
(2) to care for his physical health, or
(3) to manage his financial affairs.
Guardian of the Person: Rights & Duties
Rights:
(a) to take charge of the ward.
(b) to establish the ward’s legal domicile.
Duties:
(a) duty to provide care, supervision, and protection.
(b) must provide the ward with clothing, food, medical care, and shelter.
May consent to ward’s medical, psychiatric, and surgical treatment.
May place the ward in a restrictive care facility.
Guardian of the Estate: Rights & Duties
Right AND Duty to:
(a) possess and manage the ward’s property,
(b) enforce obligations in favor of the ward,
(c) bring and defend suits by or against the ward, and
(d) take care of and manage the ward’s estate as a prudent person would manage his own property, and must account for all rents, profits, and revenues earned by the estate.
Guardianship is subject to ____ court supervision.
Strict.
A guardian must obtain prior court approval for all transactions except for the most routine ones.
Guardian must give ____ to secure the performance of her duties.
Bond.
A guardian’s powers are sharply limited to those authorized by statute. A guardian must give bond to secure the performance of her duties and must file annual accountings with the probate court.
Rights of Wards
A ward has all the rights, benefits, responsibilities, and privileges granted by law, except to the extent limited by the court.
(1) Right to have a copy of the guardianship order and related documents;
(2) Right to have a guardianship that encourages the development of self-reliance;
(3) Right to be treated with respect and recognition of the ward’s dignity and individuality;
(4) Right to exercise full control of all aspects of life not specifically granted to the guardian;
(5) Right to personal privacy and confidentiality;
(6) Right to control the ward’s personal environment based on the ward’s preferences;
(7) Right to participate in social, religious, and recreational activities; and
(8) Right to receive timely and appropriate health care and medical treatment.
[Findings Required Before Guardian Can Be Appointed]
Before appointing a guardian, the court must find by CLEAR AND CONVINCING EVIDENCE that:
(1) the proposed ward is incapacitated,
(2) it is in the proposed ward’s best interest to have a guardian appointed, and
(3) alternatives to guardianship (e.g., establishment of a joint bank account; appointment of an agent under a durable power of attorney; execution of a medical power of attorney; creation of a management trust) and available supports and services were considered and were determined not to be feasible.
A guardianship administration is a proceeding ______.
In rem.
A guardianship administration of a ward’s estate is a proceeding in rem; i.e., it is a proceeding to determine title to or interests in specific property.
Where may a guardianship hearing be held?
At any suitable location in the county.
[Jurisdiction]
What court has jurisdiction to hear guardianship matters?
The county court.
[Venue]
Where may a guardianship proceeding for a minor be brought?
(1) The county in which both parents reside,
OR if in different counties:
(2) the county of residence of the parent who is the child’s sole managing conservator or joint managing conservator with the greater period of physical possession.
OR If both parents are dead and minor was in custody of a deceased parent:
(3) the county in which the last surviving parent having custody resided.
[Venue]
Where may a guardianship proceeding for an incapacitated adult be brought?
(1) The county of residence of the proposed ward, or
(2) the county in which the principal estate of the proposed ward is located.
[Venue]
Where may a proceeding for the appointment of a guardian who was appointed by will be brought?
(1) The county in which the will was probated, or
(2) the county of the appointee’s residence.
Who may be appointed guardian for a minor if one or more parents are living?
If one or more parents are living, a guardian does not need to be appointed.
Who may be appointed guardian for a minor if the minor is orphaned?
(1) The last surviving parent may–by will or written declaration–appoint a guardian of minor children to serve after the parent’s death.
(2) If parent did not appoint a guardian, the child’s grandparent is entitled to guardianship of both the person and the estate. (Court will choose between grandparents based on child’s best interest).
(3) If no living grandparents, next of kin will be appointed.
(4) If no relative is eligible or interested, court will appoint a qualified person.
A minor ____ years of age or older may choose the guardian.
12 years of age.
Designation of a guardian before need arises.
An individual concerned about the possibility of becoming disabled may designate by a written declaration the person who is to serve as guardian of his person or his estate.
Must be executed with the same formalities as a will; i.e., signed and written entirely in individual’s handwriting, or attested to by 2 witnesses over the age of 14.
Joint guardians
As a general rule, only one person may be appointed as guardian.
Joint guardians are only allowed if the:
(1) are spouses,
(2) are joint managing conservators of the child,
(3) were appointed joint guardians in another state, or
(4) are the parents of an adult incapacitated child even though they are not married to each other.
Persons disqualified to serve as guardians.
A person who:
(1) Lacks capacity (e.g., is a minor);
(2) Lacks experience to properly and prudently manage the estate or otherwise is an unsuitable choice;
(3) Has a conflict of interest (e.g., is indebted to the ward, has a claim adverse to the ward);
(4) Is a nonresident who has not named a resident agent; or
(5) Has been expressly disqualified by a “Designation of Guardian Before Need Arises.”
How may a guardian of the estate resign?
Upon filing a written application accompanied by a verified final account.
How may a guardian of the person resign?
May resign after:
(1) filing a written application accompanied by a report showing the condition of the ward,
(2) a hearing is held to examine and approve the account or report, and
(3) guardian has satisfied the court that she has delivered the estate remaining in her possession and has complied with all orders of the court.
Removal of a guardian WITHOUT notice.
Court may remove a guardian without notice or hearing if: (fails to do procedural junk or mistreats ward)
(1) she fails to take the oath of guardianship or post fiduciary bond within 20 DAYS, or return an inventory within 30 DAYS;
(2) she moves from Texas, is absent from the state for 3 MONTHS without the court’s permission, or cannot be served with notices or other processes; or
(3) there is CLEAR AND CONVINCING evidence that she has neglected or cruelly treated the ward, has neglected to educate or maintain the ward as the condition of the estate permits, or has misapplied, embezzled, or removed assets from the state, or is about to do so.
Removal of a guardian WITH notice and hearing.
Court may remove a guardian after notice and hearing if: (misconduct)
(1) there are SUFFICIENT GROUNDS TO BELIEVE (but NOT clear and convincing evidence) that he has misapplied, embezzled, or removed assets from the state, or is about to do so;
(2) he has been guilty of gross misconduct or mismanagement;
(3) he fails to return any required accounting or report, or fails to obey an order of the court;
(4) he has neglected or cruelly treated the ward or has neglected to educate or maintain the ward as the condition of the estate permits; or
(5) he becomes incapacitated, is sentenced to the penitentiary, or is otherwise incapable or properly performing his duties.
[Findings Required Before Guardian Can Be Appointed]
Before appointing a guardian, the court must find by a PREPONDERANCE OF THE EVIDENCE that:
(1) the court has venue,
(2) the person to be appointed guardian is eligible or is a proper person to act as guardian,
(3) the guardianship is not created for the primary purpose of enabling a minor to establish residency for enrollment in a school for which the minor is not otherwise eligible, and
(4) the proposed ward is either totally without capacity to care for himself and manage his property or lacks some but not all capacity to do the tasks necessary to care for himself or manage his property, including the capacity to make personal decisions regarding residence, voting, operation of a vehicle, and marriage.
[Hearing on appointment of guardian]
A proposed ward ____ at the hearing.
MUST be present.
A proposed ward must be present at the hearing to appoint a guardian unless the court determines that a personal appearance is not necessary.
[Hearing on appointment of guardian]
Proposed ward is entitled to a ____ upon request.
Jury trial.
A proposed ward, or any other party in a contested guardianship proceeding, is entitled to a jury trial upon request.
[Hearing on appointment of guardian]
What must the court consider at the hearing?
(1) the ability of the allegedly incapacitated adult to feed, clothe, and shelter himself, to care for his physical health, and to manage his property or financial affairs; and
(2) the qualifications, abilities, and capabilities of the person seeking to be appointed guardian.
