Guardianship Flashcards
Appointing a Guardian
Before appointing a guardian, the court must find by clear and convincing evidence that (i) the proposed ward is incapacitated, (ii) it is in the proposed ward’s best interests to have a guardian appointed, (iii) the rights of the proposed ward or his property will be protected by the appointment, and (iv) alternatives to a guardianship, as well as available support needs, were considered and determined not to be feasible.
Guardian of the Person
A guardian of the person will be appointed if it is shown that the individual, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or to care for his own physical health.
Guardian of the Estate
A guardian of the estate will be appointed if it is shown that the individual is substantially unable to manage his financial affairs.
Limited Guardianship
As a matter of policy, the Texas Estates Code encourages the creation of a limited guardianship where an incapacitated person is capable of doing some but not all of the tasks necessary to care for himself or to mange his financial affairs.
Factors in Appointing a Guardian
The primary factor is the proposed ward’s best interest. At the hearing on the appointment of a guardian, the court must inquire into the qualifications, abilities, and capabilities of the person seeking appointment. The court must give due consideration to any preferences indicated by the proposed ward.
May appoint a private professional guardian or public guardian who is certified under the Texas Estates Code.
Written Designation of a Guardian
The last surviving parent may make a written designation of guardian of a minor child. The court will generally honor that appointment.
Such a written designation raises a presumption that appointment of the designated person would be in the child’s best interest, although not conclusive.
If the last surviving parent did not appoint a guardian, the child’s grandparent is entitled to guardianship of both the person and estate of the minor.
Minor May Choose Guardian
A minor who is 12 years of age or older may choose a guardian.
Persons Disqualified to Serve as Guardians
A person is disqualified from being appointed guardian if he:
(i) lacks capacity;
(ii) lacks experience;
(iii) has a conflict of interest;
(iv) is a nonresident who’s not named a resident agent; or
(v) has been expressly disqualified by a “Designation of Guardian Before Need Arises)
