Guardianship Administration Flashcards
A guardian of the person has all the following rights and duties EXCEPT:
A - right and duty to possess and manage the ward’s property.
B - right to take charge of the ward and establish the ward’s legal domicile.
C - duty to provide the ward with clothing, food, medical care, and shelter.
D - right to consent to the ward’s medical, psychiatric, and surgical treatment.
A guardian of the person does not have the right and duty to possess and manage the ward’s property - this is the guardian of the estate.
What is a guardian of the person?
A guardian of the person has the following rights and duties: (i) to take charge of the ward and establish the ward’s legal domicile; (ii) provide care, supervision, and protection; (iii) provide clothing, food, medical care, and shelter; and (iv) the power to consent to the ward’s medical, psychiatric, and surgical treatment.
What is a guardian of the estate?
A guardian of the estate has the rights and duties:
(i) to possess and manage the ward’s property;
(ii) to enforce all obligations in favor of the ward;
(iii) to bring and defend suits by or against the ward;
(iv) to take care of and manage the ward’s estate as a prudent person would manage his own property; and
(v) account for all rents, profits, and revenues earned by the estate.
A minor age 12 or older may choose his own guardian, unless:
A minor 12 years of age or older may choose the guardian by a writing filed with the court if the court finds that the selection is in the minor’s best interest.
An appellate court may reverse the probate court’s appointment of a guardian for a person other than a minor only where:
An appellate court may reverse the probate court’s appointment of a guardian for a person other than a minor only where the appellate court finds the probate court abused its discretion.
Where an individual makes a declaration designating a guardian before the need arises, what is true?
A declaration designating a guardian before the need arises must be executed by:
(i) signed by the individual and
(ii) either written wholly in the individual’s handwriting or attested to by two witnesses age 14 or older.
If the declaration is not wholly in the individual’s handwriting, it may be signed by another person at the individual’s direction and in his presence. There is a presumption that appointment of the named person is in the ward’s best interest, however the presumption is not conclusive. The declaration may disqualify a named person from serving as guardian and the court may not under any circumstances appoint that person as guardian.
Under what exceptions may joint guardians be permitted?
Joint guardians are permitted if they
(i) are spouses,
(ii) are joint managing conservators of the child,
(iii) were appointed joint guardians in another state, or
(iv) are the parents of an adult incapacitated child even though not married to each other.
Under what circumstances can a court remove a guardian without notice or hearing?
A court may remove a guardian without notice or hearing for:
(i) the guardian fails to either take the oath of guardianship or post fiduciary bond within 20 days, or return an inventory within 30 days;
(ii) if moves from Texas, is absent from the state for three months without court permission, or cannot be served with notice because her whereabouts are unknown or she is eluding service; or
(iii) there is clear and convincing evidence she has neglected or cruelly treated the ward, neglected to educate or maintain the ward as the condition of the estate permits, or misapplied, embezzled, or removed assets from the state, or is about to do so.
Before appointing a guardian, the court must find by clear and convincing evidence that:
Before appointing a guardian, the court must find by clear and convincing evidence that:
(i) the proposed ward is incapacitated,
(ii) it is in the proposed ward’s best interests to have a guardian appointed, and
(iii) the rights of the proposed ward or his property will be protected by the appointment of a guardian.
When do letters of guardianship expire?
Letters of guardianship expire 16 months after the date of issuance unless renewed. This rule is tied to the requirement that there be an annual determination of whether there is a continued necessity for the guardianship.
K was named as guardian of the person of M, a 15 year old minor. K must give bond to secure the faithful performance of his duties as M’s guardian unless:
M’s surviving parent’s will or written declaration appointed K as guardian of the person and provides that K shall serve without bond.
Without a court order, a guardian may:
Without a court order, a guardian may:
(i) rent real or personal property of the estate for up to one year;
(ii) insure the estate against liability and insure property of the estate against fire, theft, and other hazards;
(iii) pay taxes, court costs, and bond premiums;
(iv) release a lien on payment of the debt secured by the lien; and
(v) vote stocks that are part of the guardianship estate.
Richard was named guardian of the estate of Mary Ann, 57 years old, who suffered serious head injuries in an automobile accident that left her in a coma. Mary Ann’s estate includes several real estate holdings but very few liquid assets.
The court may enter an order authorizing Richard to gift the real estate holdings to qualify Mary Ann for government benefits if:
The court may enter an order authorizing a guardian of the estate to make gifts for two purposes:
(i) to qualify the ward for governmental benefits, and
(ii) to minimize income, estate, or other taxes of the ward’s estate.
The court can enter such an order only if it is shown that the ward will probably remain incapacitated for life. The leasability of real estate and status of a real estate license are irrelevant in the court’s decision.
A court created management trust was established for Roman, a 16 year old minor, after he inherited a substantial estate from his grandfather. When may the trust be terminated?
If the beneficiary of a court created management trust is a minor, the trust terminates:
(i) on the date provided by court order, which may not be later than the beneficiary’s 25th birthday; or
(ii) on the beneficiary’s death.
A showing of best interest or compelling reason is not required.
If the beneficiary of a court created management trust is an adult:
If the beneficiary is an incapacitated or physically disabled adult, the trust terminates:
(i) when the court determines that continuing the trust is no longer in the beneficiary’s best interests; or
(ii) on the beneficiary’s death.
