Guardianship Flashcards
Guardian of the Person (Rights; Prereqs; Burden of Proof; Considerations)
Has right to take control of ward; duty to provide care, supervision, and protection for the ward; duty to provide clothing, food, meds, and shelter; and power to consent to med and psych treatment (parallel to managing conservator in Family Code)—can be a bank (but rare)
Given if C&C that individual is substantially unable to provide food, clothing, or shelter for themselves or care for own physical health
Look at desire of minor (if over 12); ability to keep person in the same area (not uproot them): routine, schooling, friends, etc
More Restrictive Care Facility
Except in cases of emergency, guardian of the person may place in a more restrictive care facility only if:
(i) guardian provides notice of the proposed placement to the court, ward, and any person requested notice, and
(ii) any objection filed by a person who received notice is overruled after a hearing
Guardian of the Estate (Rights; Burden; less than $100K; Appointment and Bond Waiver; Standing; Qualifications
Right and duty to manage ward’s property, enforce ward’s obligations, and bring or defend suits by or against the ward. Given if C&C evidence if substantially unable to manage financial affairs.
If less than $100K guardian can obtain a court order authorizing a sale without the appointment of a guardian in which case proceeds paid into court registry.
Surviving parent can, by will or written declaration, appoint guardian of the parent’s minor kid or incapacitated adult child in event of parent’s incapacity or death. Execution reqs same as for will. Will can waive bond
Any person has standing for guardianship
Can appoint a banker or court-created management trust. Must inquire into the qualifications, abilities and capabilities of person seeking appointment and give due consideration to any preferences indicated by the proposed ward. Could appoint bank over next of kin due to insufficient experience, edu, and ability to prudently manage the estate (Blackburn)
Burden to Show Incapacity
1) incapacitated; (2) best interest is having guardian appointed; (3) rights and property protected by guardian appointment; (4) alternatives to guardianship and available support considered and deemed not feasible
Burden to Show Guardian (really everything else besides incapacity); Priority
by POE (1) ward either totally without capacity to care for himself and manage property or lacks capacity to do some, but not all, of the tasks necessary to care for himself and his property (total or partial incapacity); (2) applicant is eligible to be appointed guardian; (3) naming applicant guardian is in best interest
Priority given to proposed ward’s spouse or next of kin (nearest ascendant): unless (i) DQed; (ii) refuse to serve; (iii) POE not in best interest
Guardian of Minor: Presumption
last surviving parent presumed in best interest but presumption not conclusive. If not designated by parent then grandparent or next of kin in nearest degree of kinship.
o Under Estates Code: guardian at least 12 may choose guardian w/written filing with court. Court must approve if found in ward’s best interest
Court’s Power over Appointment
(despite presumption that appointment of person in parent’s/person’s Suggestion of Guardian is in the Ward’s best interest) if: (1) person is DQed from serving or (2) not in the ward’s best interest. CONSIDER best interests of minor (for guardian of person) separately from best interests of the estate (for guardian of estate)
Can also limit the guardian’s powers if proposed has capacity to do some but not all tasks necessary to care for themselves.
Guardian’s Limits and Powers
no self-dealing; limited to power granted in order of appointment
Guardian of Incapacitated Individual
person named by last surviving parent; designation of guardian before need arises; spouse or next of kin. Best interest of the ward.
Disqualified from being Guardian if:
Incap person;
conflict of interest (owes money to proposed ward unless court determines no conflict or guardian ad litem appointed);
inexperience, lack of edu, or other reason;
person w/notoriously bad conduct;
person expressly DQed as the court finds them unsuitable;
convicted sexual offender
Proving Incapacitation of Person Requires:
applicant presents a written letter or certificate from a physician based on an exam within 120 days before filing the application
Affidavit cannot be conclusionary; must have detailed description of the nature, degree, and severity of the mental incapacity including ward’s ability to handle business and financial matters and to consent to medical treatment. Also must describe physical and mental conditions underlying the mental disability diagnosis and state whether the proposed ward would benefit from services allowing them to live in restrictive setting
Venue (Minor/Incap Adult)
Where parents (or managing conservator) reside for minor.
Incap adult: county where proposed ward resides or where principal estate is located.
Guardian Requirements
Within 60 days must: qualify by taking oath and posting fiduciary bond w/in 20 days/publish notice of admin w/in 1 month/file inv w/in 30 days/file application for monthly allowance w/in 30 days.
Accountings required annually
Compensation cannot exceed 5% of ward’s gross income
Temporary Guardian
substantial need; can’t remain in effect for more than 60 days.
