Guardianship Flashcards
Rights & Obligations of a guardian of the person?
Right to physical possession of ward; duty of control and care; duty to provide clothing, food, medical care, and shelter; power to consent to medical treatment
Rights & obligations of a guardian of the estate?
Right and duty to manage ward’s property; right to enforce ward’s obligations; right to bring or defend suits on ward’s behalf.
Can a parent choose a child’s guardian?
Parent may by will or other written declaration appoint a guardian of the parent’s minor children or incapacitated adult children. The named person must be appointed unless the court finds them to be disqualified, dead, won’t serve, or not in the ward’s best interests.
Must a guardian post bond?
Bond can be waived for guardian of the person but not of the estate
What is the proper venue for appointment of guardian?
The county where the parents reside for minors; for adults, the county where the ward resides or where his principal estate is located
Who has standing to commence a proceeding for the appointment of a guardian?
Any person has standing to commence the proceeding. They can recover attorney’s fees from the ward’s estate if the court finds that the proceeding was brought in good faith?
Who is not eligible to be appointed as a guardian? (5)
Disqualified guardians include (1) incapacitated people (2) those with a conflict of interest (3) those whose inexperience or lack of education makes them incapable of prudently managing the ward’s estate (4) person expressly disqualified in designation of guardian before need arises (5) person convicted of sex offense, sexual assault, or injury to child/elderly
When is a limited guardianship appropriate?
When the court finds that a person lacks capacity to do some, but not all, of the tasks necessary to care for himself, the court may appoint a guardian w/ limited powers and permit the individual to care for himself to the extent he is able
What procedural safeguards exist with respect to guardianship?
An attorney ad litem represents the ward; guardian ad litem at court’s discretion; mandatory court investigator; may appoint a court visitor; ward must be present at trial; ward or attorney ad litem may request a jury trial; C&C Ev. standard for incapacity; guardianship papers are only valid for 16 months (Annual review)
What are a guardian’s duty upon appointment? (5)
(1) G must qualify by taking oath/posting bond w/in 20 days (2) must publish notice of admin. in a newspaper w/in 1 month (3) must file an inventory of estate w/in 30 days (4) must file an application for monthly allowance w/in 30 days to be expended from income and principal on ward’s behalf stating separate amounts requested for education and maintenance of W’s property. (5) duty to invest property not immediately needed so must file an application to develop an investment plan or modify/eliminate duty to invest w/in 180 days.
When can a guardian be removed without notice and hearing? (3)
(1) if G fails to post bond w/in 20 days (2) moves from TX or is absent from state for more than 3 months or cannot be served w/ notices (3) has cruelly treated the Ward, failed to maintain or educate, or misapplied/embezzled assets. Burden of proof is C&C Ev.
When can a guardian be removed w/ notice & hearing? (4)
(1) grounds to believe G acted inappropriately (2) G is guilty of gross misconduct or mismanagement (3) G fails to comply w/ a court order or fails to file her annual report or (4) G becomes incapacitated or for some other reason is incapable of performing her duties
What powers does a guardian have w/out court approval (4)?
(1) power to retain property w/ no duty to diversify for 1 year (2) make investment decisions that are consistent w/ court approved plan (3) may expend amounts in excess of monthly allowance when prior court approval not possible/inconvenient if C&C ev. that they are reasonable/proper (4) can insure property, pay taxes, etc. as necessary to maintain the property.
What is required for Guardian to sell real/personal property?
Prior court approval and sold for purpose of paying claims and expenses, ward’s maintenance, or to dispose of unproductive property
How is a guardian compensated?
Guardian of the person can get up to 5% of the ward’s gross income not including social security or veteran’s benefits. Guardian of the estate is entitled to reasonable compensation (5% in and out is presumed reasonable)
