Guardianship Flashcards
Rights & obligations of a guardian of the person?
Right to physical possession of ward;
duty of control & care;
duty to provide clothing, food, medical care & shelter;
power to consent to medical treatment.
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, wouldn’t serve, or not in the ward’s best interest. 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 parent’s reside for minors or 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 attorneys’ 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 guardian (5 things)?
Disqualified guardians include incapacitated people,
those w/a conflict of interest,
those whose inexperience or lack of education makes them incapable of prudently managing ward’s estate,
person expressly disqualified in designation of guardian before need arises, or
a person convicted of sex offense, sexual assault, or injury to child or 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, & permit the individual to care for himself to the extent he is able.
What procedural safeguards exist w/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 mos.( there should be a yearly review).
What are a guardian’s duties upon appointment (5 things)?
A guardian must qualify by taking an oath & posting a fiduciary bond w/in 20 days;
must publish a notice of administration in a newspaper w/in 1 month;
must file an inventory of the estate w/in 30 days;
must file an application for monthly allowance, w/in 30 days, to be expended from income &
principal on the ward’s behalf stating separate amounts requested for education &
maintenance & maintenance of ward’s property.
A guardian has a duty to invest property not immediately needed so must file an application to develop an investment plan or modify or eliminate the duty to invest w/in 180 days.
When can a guardian be removed w/notice & hearing (4 things)? .
If there are grounds to believe she has acted inappropriately;
if she is guilty of gross misconduct or mismanagement;
if she fails to comply w/a court order or fails to file her annual report;
or if she becomes incapacitated or for some other reason is incapable of performing her duties
What powers does a guardian have w/out court approval (4 things)?
The power to retain property w/no duty to diversify for 1 year;
may make investment decisions that are consistent w/court approved plan;
may expend amounts in excess of the monthly allowance when prior court approval is not possible or inconvenient if there is C&C ev. that they are reasonable & proper;
can insure the property, pay taxes, etc… as necessary to maintain the property.
What is required for a guardian to sell real or personal property?
Prior court approval & sold for the purpose of paying claims &
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 ward’s gross income not including social security or veterans benefits. Guardian of the estate is entitled to reasonable compensation (5% in & out is presumed reasonable)
What is another procedure available for handling money when a ward does not have capacity to do so?
$100k or less can be paid into the registry of the court to avoid guardianship, but the ward would have to go to the court for each disbursement. Also, if there is a guardian, a court created management trust under §867 of probate code for a minor settlement. If more than $50k a bank must be trustee. Trust continues up to age 25. If no guardian an Art. 142 trust will accomplish the same result, but a bank must always be trustee.
Name a less expensive way of handling the guardianship of an adult ward’s estate?
A guardian of the person can be appointed Guardian to receive funds from government source, & can expend payments on ward’s behalf w/out a court order, if the amount of pension is less than $12k/yr.
