Guardianship Flashcards
Incapaciated adult & physician documentation
The court may not grant an application to create a guardianship for an incapacitated person, other than a minor or person for whom it is necessary to have a guardian appointed to receive funds from a governmental source, unless the applicant presents to the court 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. The letter or certificate must: (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 and in what manner the ward’s physical and mental condition affects their ability to communicate and make responsible choices ; (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.
Burden of proof
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 burden of proof is on the person alleging the incapacity. 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.
General application
The court must find by clear and convincing evidence that the ward is incapacitated, that it is in the ward’s best interests to have a guardian appointed, and that the ward’s rights and property will be protected by the appointment of a guardian. The burden of proof is on the person alleging the incapacity.
Incapacitated adult definiton
An incapacitated adult is a person over age 18 who, because of mental or physical condition, is substantially unable to provide food, shelter, or clothing for himself; to care for his physical health; or to manage his financial affairs. 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.
Other findings court needs to make
In addition, the court must make further findings as to venue, as to the eligibility of the proposed guardians, and that the ward is either totally unable to care for himself and his property or is unable to do some of the tasks necessary for his care. All of these findings must be by a preponderance of the evidence.
Need to show to become guardian
The applicants will have to establish by a preponderance of the evidence that they should not be disqualified from becoming May’s guardian. Specifically, they must show that they do not have any conflicts of interest, they have the adequate experience or are a suitable choice, they do not lack capacity, and they have not been convicted of sexual assault.
Naming guardian before incapacity
A person may designate a guardian of his person or his estate before becoming incapacitated. The declaration must be entirely in writing or attested by two witnesses age 14 or over. However, while the court must make a reasonable effort to take into account the ward’s preference in choosing a guardian, it is not bound to do so, especially if the designee is disqualified or found to be incapable of serving the ward’s best interests.
Guardian of the estate
A “guardian of the estate” is charged with the duty of possession and management of the ward’s property and financial dealings.
Guardian of the person
A “guardian of the person” must be an individual. A “guardian of the person” has the right to physical possession of the ward and is charged with the duty of the ward’s care, including the duty to provide food, clothing, shelter, and medical care, and to consent to the ward’s psychiatric, medical, and surgical treatment. A guardian of the person also has the right to establish the ward’s legal domicile.
Intro P - what you must prove
The court must find by clear and convincing evidence that the ward is incapacitated, that it is in the ward’s best interests to have a guardian appointed, and that the ward’s rights and property will be protected by the appointment of a guardian. The burden of proof is on the person alleging the incapacity. An incapacitated adult is a person over age 18 who, because of mental or physical condition, is substantially unable to provide food, shelter, or clothing for himself, to care for his physical health, or to manage his financial affairs. 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. Thus, the applicants in this case must prove by clear and convincing evidence that Tom is incapacitated, that it is in the best interests of Tom to have a guardian appointed, and that Tom’s rights and property will be protected by appointment of a guardian. In addition, the court must make further findings as to venue, eligibility of the proposed guardians, and whether the ward is either totally unable to care for himself and his property or is unable to do some of the tasks necessary for his care. All of these findings must be by a preponderance of the evidence
Last surviving parent and designating guardian for incapacitated ward
The last surviving parent of an incapacitated person may designate a guardian in the same manner as for minor children, in that he may do so via signed will or written declaration, attested to by two witnesses over age 14. If such declaration has been left, the court must appoint the guardian, unless the court finds such guardian to be disqualified or the guardian is dead, refuses to serve, or would not serve the best interests of the ward.
Last surving parent no designate
If the last surviving parent did not appoint a guardian, the grandparents are entitled to guardianship of both the minor and the estate. If there is more than one grandparent, one must be chosen as a guardian by the court. If there are no living grandparents, the next of kin is appointed as guardian, unless there is no next of kin, in which case the court may appoint another qualified person. If the minor is over age 12, he may choose his own guardian if the proposed guardian is in the best interests of the ward and approved by the court.
Does the court need to take into account the preference of the ward?
The court must make a reasonable effort to take into account the ward’s preference in choosing a guardian.
Guardian of both generally
In general, the court will appoint the same individual as guardian of the estate and guardian of the person. However, the court may separate the guardianship into a guardian of the person and a guardian of the estate.
Factors for picking guardian
The best interest of the ward is always the paramount factor considered in whom to appoint as a guardian over the ward and the ward’s estate. A person’s personal physical and mental capacity, in addition to any specific skill sets and demonstrated level of maturity, are factors considered by the court to decide guardianship.
