Guardianship - WIP Flashcards
What rights and duties does a guardian of the person have?
(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 rights and duties does a guardian of the estate have?
(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 guardian of the person does NOT have to be appointed if the minor:
Has at least one living parent, because parents are natural guardians of their minor children.
However, a parent, as guardian of the child’s person, has no power to manage the child’s estate (if the child owns property), and one of the parents will need to be appointed guardian of the estate. Whether the minor has an adult sibling is irrelevant to a guardianship analysis. Similarly, it is adults, rather than minors, that must be adjudicated incapacitated before a guardian may be appointed.
A minor age 12 or older may choose his own guardian unless:
The court finds that the selection is not within 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:
The appellate court finds that the probate court abused its discretion.
The probate court appoints a guardian for a person other than a minor according to the incapacitated person’s best interests. In making that determination, the probate court has broad discretion and an appointment will be upheld unless there is a showing the probate court abused its discretion.
When an individual makes a declaration designating a guardian before the need arises, what formalities are required?
The declaration must be:
(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 and the court may decline to appoint the named person. Additionally, the declaration may disqualify a named person from serving as guardian and the court may not under any circumstances appoint that person as guardian.
What would disqualify a person from being appointed as guardian?
1) Lack of capacity (being a minor or incapacitated child
2) Inexperience, lack of education, or other good reason
3) Incapable of properly managing the ward or estate
While inexperience or lack of education is grounds for disqualification, the rule does not necessarily require a guardian be knowledgeable in probate law, be an expert in business management, or be experienced in investing money.
When are joint guardians permitted?
1) If they are spouses
2) If they are joint managing conservators of the child
3) If they were appointed joint guardians in another state
4) If they are parents of an adult incapacitated child even though they are not married to each other,
In most other circumstances, only one person is permitted to be appointed guardian.
A court may remove a guardian without notice or hearing if the guardian:
(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 she 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.
A court MUST give proper notice and hearing when removing a guardian if:
1) The guardian is sentenced to the penitentiary,
2) Is guilty of misconduct or mismanagement, or
3) Fails to obey a court order
Before appoint a guardian, the court must find clear and convincing evidence of each of the following:
(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.
Before appoint a guardian, the court must find by a preponderance of the evidence of each of the following:
(i) the court has proper venue;
(ii) the person to be appointed guardian is eligible;
(iii) if a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school for which the minor is not otherwise eligible; and
(iv) the proposed ward is either totally without capacity to care for himself and manage his property, or lacks the capacity to do some of the tasks necessary to care for himself or manage his property.
When do letters of guardianship expire?:
1 year and 2 months after the date of issuance.
This rule is tied to the requirement that there be an annual determination of whether there is a continued necessity for the guardianship.
An individual named as guardian of the person must give bond to secure the faithful performance of their duties UNLESS:
A surviving parent’s will or written declaration appoints the guardian of the person of their minor children and provides that the guardian shall serve without bond.
This exception applies only to guardians of the person; an individual named as guardian of the estate must give bond and the requirement cannot be waived by will or declaration.
What is the exception for an appointed guardian of the estate giving bond?
There is no exception. Guardians of the estate must always give bond, and this requirement cannot be waived.
