Guardianship Flashcards
Guardianship of Person
Guardian of the person has right to take charged of the ward, duty to provide care, supervision and protection for the ward, duty to provide clothing food, medical care and shelter, and power to consent to medical and psychiatric treatment.
Guardian of the estate
Guardian of the estate has right and duty to manage ward property enforce the wards obligation and bring or defend suits by or against the ward
- Only guardian of estate can deal with property, not just natural parent. But if value of entire interest in all of the property inherited is less than $100,000 parent can obtain a court order authorizing sale of property without the appointment of a guardian in which case sale proceeds are paid into court registry
Can surviving parent appoint guardian?
Surviving parent may by will or written declaration, appoint guardian of the parents minor children or incapacitated adult child in the even of the parents subsequent incapacity or after the parents death. The named person is appointed guardian unless court finds that she is disqualified, dead or appointment of the designated person would not serve child’s best interest.
For a written declaration execution requirements are the same as for wills: can be holographic- wholly in parents handwriting and signed by her if not must be signed by the parent (or on her behalf by another person at parents discretion and in her presence and must be witness by two witnesses age 14 or older
- Do not have to pay fiduciary bond if waived by will but will have to pay bond as condition to serving as guardian of the estate. That cant be waived by will
- Child 12 years or older can choose guardian in writing filed by court unless court vetoes it as not in child’s best interest
Venue for appointment of minor guardian
County where parents (or parent who is managing conservator) reside.
Venue for guardian of incapcitated adult
County where proposed ward resides or county where principal estate is located
Venue for guaridan named in parents will
County where will was probabted or county where appointee resides
Any suitable county
Hearings on any guardianship matter can be held at any suitable location the county unless ward proposed ward or his attorney requests that the hearing be held at the county courthouse
Who has standing to file will contest?
Only person that has economic interest adversely affected by wills admission to probate has standing to file a will contest
- But any person has standing to bring a guardianship proceeding (ex: suspect someone is in poor health and being taken advantage of)
- If you bring guardianship proceeding and are unsuccessful and dismissed are you liable for attorneys fees from proposed wards estate? No if you acted in good faith
Who is eligible to be appointed guardian of the person and estate of a minor?
Parents or surviving parent. Last surviving parent can name guardian of the child
- Presumed that person designated by parent is in child’s best interest but presumption is not conclusive. If not designated by a parent, grandparent, next of kin in nearest degree of kinship
Who is eligible to be appointed guardian of the person and estate of an incapacitated adult?
- Person named by last surviving parent in will or other written declaration
- Person named in written, witnesses designation of guardian before need arises. Designation is prima facie evidence that named person will serve the proposed wards best interest but court may decline to appoint the person if she is asserting a claim against the proposes wards estate or otherwise is not suitable
- If no such declaration: spouse, next of kin in nearest degree of kinship.
General test as to who should be appointed guardian:
Best interest of the ward
Can two persons be appointed as co-guardians?
No
Exceptions: (i) they are husband and wife, (ii) they are joint managing conservators of the child (iii) they were appointed joint guardians in another state or (iv) they are parents of an adult incapacitated child even though not married to each other
Who is disqualified from being appointed guardian?
- Incapacitated person
- Conflict of interest (owes money to proposed ward or asserting claim against proposed war (would be ruling on validity of own claim) unless (i) court determines there is no conflict or (ii) guardian ad litem is appointed to represent proposed ward
- Inexperience, lack of education, other reason makes her incapable of prudently managing proposed ward’s estate
- A person whose conduct is notoriously bad
- Person expressly disqualified in designation of guardian before need arises
- Person convicted of sexual offense, sexual assault, injury to child or elderly person etc (not disqualified per se, but appointment is presumed not to be in wards best interest)
limited guardianships
Probate Code urges limited guardianships whenever possible when person lacks some but not all capacity. Order must specify (i) the powers, duties and limitations of the guardian and (ii) the amount of the wards fund that can be expended for the wards care without court approval
- If the ward regains some of his cognitive skills the ward or an interested person can petition to have the guardianship modified or terminated
In an incapacity proceeding what safeguards are imposed to insure that the proposed wards rights are fully protected?
- Court must appoint an attorney to represent proposed ward unless proposed ward already has her own attorney
- Courts discretion to appoint a guardian ad litem on behalf of proposed ward
- Court must appoint court investigator
- Court does not have to appoint a court visitor
- Proposed ward must be present at trial unless determined unnecessary
- Proposed ward (or attorney) can ask for a jury trial
