Guardianships

Question 1

What is a guardianship? When is it needed?

Answer 1

A court-appointed, court-supervised fiduciary relationship pursuant to which one person assumed legal responsibility for the PERSON OR ESTATE.

May be necessary to protect minors or incapacitated adults.

Question 2

T/F - Generally, the laws governing estates of decedents apply to Texas guardianships.

Answer 2

True.

Question 3

What is a guardian ad litem?

Answer 3

A person appointed by a court to represent the best interests of an incapacitated or unborn person in a specific litigation matter.

NOT THE GUARDIAN WE ARE DISCUSSING FOR THIS SUBJECT.

Question 4

What is an “attorney ad litem?”

Answer 4

An attorney appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, or an unborn or unascertained person, a non-resident, OR an unknown missing potential heir in a guardianship proceeding.

Question 5

What is the “guardianship estate?”

Answer 5

The property of a ward or deceased ward, both as the property originally existed and as it has changed in form and increased or decreased.

Question 6

Who is a guardian?

Answer 6

A person who is appointed guardian or a temporary or successor guardian.

Includes BOTH GUARDIAN OF THE ESTATE AND THE GUARDIAN OF THE PERSON of an incapacitated person.

Question 7

What classifies someone as being incapacitated?

Answer 7

Incapacitated means:

1) A minor;
2) An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; OR
3) Person who MUST have a guardian appointed to receive funds due the person from ANY GOVERNMENTAL SOURCE.

Question 8

Who are “interested persons?”

Answer 8

Heir, devisee, spouse, creditor, or any other person having a property right in, or claim against, the estate being administered, or a person interested in the welfare of an incapacitated person, including a minor.

Question 9

What is the personal representative in a guardianship?

Answer 9

This is the guardian or successor guardian.

Question 10

Who is the ward? What is a proposed ward?

Answer 10

The proposed ward is the person ALLEGED to be incapacitated.

A ward is a person for whom a guardian has been appointed.

Question 11

Explain jurisdiction in guardianship cases.

Answer 11

ALL guardianship proceedings MUST BE FILED IN THE COURT EXERCISING ORIGINAL PROBATE JURISDICTION.

Court also has jurisdiction of ALL MATTERS RELATED TO THE GUARDIANSHIP PROCEEDING.

A probate court may exercise pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.

FINAL ORDERS ARE APPEALABLE TO THE COURT OF APPEALS.

Question 12

Where is venue proper in a guardianship proceeding?

Answer 12

IN THE COUNTY:

1) In which the proposed ward resides;
2) The proposed ward is located on the date that the application is filed; OR
3) In which the principal estate of the proposed ward is located.

Question 13

Where is the special location of hearings for adult proposed wards?

Answer 13

Judge may hold a hearing on a guardianship matter involving an adult proposed ward at ANY SUITABLE LOCATION in the county in which the guardianship matter is pending.

Should be held in a physical setting that is not likely to have a harmful effect on the ward or proposed ward.

However, on the request of the adult proposed ward, the adult ward, or her attorney, the hearing may NOT be held at a place other than the court house.

Question 14

What are the special venue rules for proceedings concerning minors?

Answer 14

A proceeding for the appointment of a guardian for the person or estate, or both, of a MINOR MAY BE BROUGHT:

1) In the county in which BOTH the minor’s PARENTS RESIDE;
2) If the parents do not reside in the same county, in the county in which the parent who is the SMC of the minor resides, or in the county in which the parent who is the JMC with greater period of physical possession of and access to the minor resides;
3) If ONLY ONE PARENT IS LIVING AND the parent has CUSTODY of the minor, in the county in which that parent resides;
4) If BOTH PARENTS DEAD but the minor WAS IN THE CUSTODY OF ONE OF THEM, in the county in which the LAST SURVIVING PARENT HAVING CUSTODY RESIDED; OR
5) If BOTH PARENTS DEAD IN A COMMON DISASTER (no evidence other than the parents died simultaneously), in the county in which BOTH deceased parents resided at the time of their simultaneous deaths, if they resided in the same county.

Question 15

Where is venue proper when a guardian is appointed by will?

Answer 15

May be brought in the county in which the will was admitted to probate OR in the county of the appointee’s residence if the appointee resides in Texas.

Question 16

What if there are more than one proper venues?

Answer 16

CONCURRENT VENUE - If two or more courts have concurrent venue of a guardianship proceeding, the court in which an application for a guardianship proceeding is initially filed has and retains jurisdiction of the proceeding.

Question 17

Where is a guardianship proceeding filed?

Answer 17

MUST be filed with the COUNTY CLERK of the proper county.

Question 18

What citation and notice is due in a guardianship proceeding?

Answer 18

Unless a court order is required under the TEC, the county clerk issues necessary citations in guardianship proceedings, as well as all notices not required to be issued by guardians.

The county clerk issues a citation calling ALL PERSONS INTERESTED in the welfare of the proposed ward to appear should they wish to contest the application.

RECENT STATUTORY AMENDMENT - CITATION MUST CONTAIN A CLEAR AND CONSPICUOUS STATEMENT informing the interested persons of their right to be notified of ANY and all motions, applications, peadings, etc.

NOTICE MUST BE PERSONALLY SERVED ON A PROPOSED WARD WHO IS 12 YEARS OR OLDER, HIS PARENTS, ANY OTHER PERSON HAVING CONTROL OF THE WARD’S CARE, A PROPOSED WARD’S SPOUSE, AND THE PROPOSED GUARDIAN (IF OTHER THAN THE APPLICANT).

THE APPLICANT MUST mail a copy of the application and a notice containing the information set forth in the citation to various family members, an administrator of a facility in which the proposed ward resides, one who holds a power of attorney signed by the proposed ward, and certain others named in the TEC.

Question 19

How is an attorney ad litem appointed?

Answer 19

In the proceeding for the appointment of a guardian, the COURT generally MUST APPOINT an attorney ad litem to represent the best interests of the proposed ward.

Question 20

What is the attorney ad litem entitled to?

Answer 20

MUST receive copies of all current records in the case.

MAY have access to all of the proposed ward’s relevant medical, psychological, and intellectual testing results.

Question 21

How is one eligible to be an attorney ad litem?

Answer 21

A person must have the CERTIFICATION required by the TEC.

Question 22

When does the term of an attorney ad litem end?

Answer 22

The term of appointment of an attorney ad litem generally expires on the DATE THE COURT APPOINTS A GUARDIAN (except in the case of a termporary guardian) OR DENIES THE APPLICATION FOR APPOINTMENT of a guardian.

Question 23

When does the court appoint a guardian ad litem? What are they entitled to?

Answer 23

Court MAY APPOINT a guardian ad litem to represent the interests of an incapacitated person.

They are entitled to receive REASONABLE COMPENSATION.

Question 24

Who has standing to commence a guardianship proceeding?

Answer 24

Generally, ANY PERSON has the right to commence any guardianship proceeding or to appear and contest any guardianship proceeding or the appointment of a particular person as guardian.

PERSON WHO LACKS STANDING: A person who has an interest that is ADVERSE to a proposed ward or incapacitated person MAY NOT:

1) File an application to create a guardianship for the proposed ward or incapacitated person;
2) Contest the creation of a guardianship for the proposed ward or incapacitated person;
3) Contest the appointment of a person as guardian of the person or estate, or both, of the proposed ward or incapacitated person; OR
4) Contest an application for complete restoration of a ward’s capacity or modification of a ward’s guardianship.

Question 25

Who is disqualified to serve as a guardian?

Answer 25

A person may NOT be appointed guardian if the person is:

1) A minor;
2) A person whose conduct is “notoriously bad;”
3) An incapacitated person;
4) A party, or person whose parent is a party, to a lawsuit affecting the welfare of the proposed ward, UNLESS THE COURT: (a) determines that the lawsuit claim of that person is not in conflict with the lawsuit claim of the proposed ward; AND (b) appoints a guardian ad litem.
5) A person indebted to the proposed ward;
6) A person asserting a claim adverse to the proposed ward or his property;
7) A person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate;
8) Anyone found UNSUITABLE by the court;
9) A person disqualified by virtue of the declarant’s executing a declaration disqualifying the person;
10) A nonresident who has not filed with the court the name of a resident agent to accept service of process; OR
11) A person who does not have the certification required by the TEC.

Question 26

What proposed guardians are presumed to NOT be in the best interests of a proposed ward?

Answer 26

Those who have been FINALLY CONVICTED of:

Any sexual offense, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, to an elderly individual, or to a disabled individual, abandoning or endangering a child, terroristic threat, or continuous violence against the family of the ward or incapacitated person.

Question 27

T/F - For a minor at least 12 years of age, the minor may select the guardian.

Answer 27

True, IF the court approves the choice and finds that the choice is in the BEST INTERESTS OF THE MINOR.

A minor may also select another guardian if the minor has a guardian appointed by the court, or the minor has a guardian appointed by will or written declaration of the parent of the minor, and that guardian dies, resigns, or is removed from guardianship.

THE MINOR MUST MAKE THE SELECTION BY FILING AN APPLICATION IN OPEN COURT IN PERSON OR BY ATTORNEY.

Question 28

How is a guardian selected if a minor has not selected one?

Answer 28

WHERE THE MINOR HAS ONE OR MORE LIVING PARENTS:

1) PARENTS WHO LIVE TOGETHER - both parents are the natural guardians of the person of the minor children by the marriage, and one of the parents is entitled to be appointed guardian of the children’s estates. If the parents DISAGREE as to which parent should be appointed, the court makes the appointment on the basis of WHICH PARENT IS BETTER QUALIFIED TO SERVE.
2) ONE PARENT DEAD - Survivor is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their estates.
3) PARENTS WHO DO NOT LIVE TOGETHER - EQUAL RIGHTS. Guardianship of their minor children shall be assigned to one or the other, considering ONLY THE BEST INTERESTS OF THE CHILDREN.
4) Surviving parent of a minor child may BY WILL OR WRITTEN DECLARATION appoint any eligible person to be guardian of the person of the parent’s minor children after the death of the parent or in the event of the parent’s incapacity. NONTESTAMENTARY GUARDIAN DECLARATIONS MUST COMPLY WITH THE TEC.

NOTE: If by WILL, the designated guardian will be chosen by the court in preference to those otherwise entitled to serve as guardian UNLESS Court finds that the designated guardian is disqualified, is dead, refuses to serve, or would not serve the best interests of the minor children

NOTE: An eligible person is also entitled to be appointed guardian of the children’s ESTATES.

Question 29

Who is appointed guardian if the minor is an orphan?

Answer 29

1) If last surviving parent did NOT appoint a guardian - The nearest ascendant (grandparents) in the direct line of the minor is entitled to guardianship of both the person and the estate of the minor (e.g., typically a grandmother or grandfather).
2) If more than one ascendant exists in the same degree in the direct line - ONE ascendant will be appointed, according to the best interests of the minor.
3) If the minor has NO ASCENDANT in the direct line - NEAREST OF KIN will be appointed. If there are two or more persons in the same degree of kinship, ONE will be appointed, according to the best interests of the minor.
4) If NO RELATIVE of the minor is eligible to be guardian, or if no eligible person applies to be guardian - the court will appoint a QUALIFIED PERSON as guardian.

Question 30

How are guardians for non-minors selected?

Answer 30

COURT WILL APPOINT A GUARDIAN FOR A PERSON OTHER THAN A MINOR ACCORDING TO THE BEST INTERESTS OF THE WARD.

Order of preference:

1) The ward’s spouse;
2) The eligible person nearest of kin to the ward; OR
3) Court will appoint the eligible person who is BEST QUALIFIED to serve as guardian IF: (a) those with priority of preference refuse to serve; (b) two or more persons entitled to serve as non-spousal nearest of kin are related in the same degree of kinship to the ward; OR (c) neither the ward’s spouse nor any person related to the ward is an eligible person.

APPOINTMENT BY SURVIVING PARENT OF WARD: The surviving parent of an incapacitated adult may by will or written declaration appoint an eligible person to be guardian after the parent’s death or in the event of the parent’s incapacity if the parent is the guardian of the person of the incapacitated adult.

Question 31

What are the consequences of the death or incapacity of the parent of an adult ward?

Answer 31

The court will appoint the person designated in the will or declaration to serve as guardian in preference to those otherwise entitled to serve as guardian, UNLESS the court finds that the designated guardian is disqualified, is dead, refuses to serve, or would not serve the best interests of the adult individual.

Eligible person appointed guardian is also entitled to be the guardian of the adult individual’s estate.

Question 32

How does a court appoint a guardian, and what does it consider?

Answer 32

Court may appoint a guardian of an individual’s PERSON OR ESTATE, upon a finding that he is totally without capacity to care for himself, to manage his property, to operate a vehicle, and to vote in a public election.

1) Court MUST CONSIDER and give due consideration to the incapacitated person’s preference of the person to be appointed guardian.
2) If proposed ward has capacity for some but not all tasks - the court may appoint the guardian with LIMITED POWERS and permit the proposed ward to care for himself and/or his property to some degree.

Question 33

How many people can be appointed guardian?

Answer 33

Generally ONLY ONE person may be appointed as guardian of the person or estate.

One person may be appointed guardian of the person and ANOTHER person as guardian of the estate, IF IN THE BEST INTERESTS OF THE WARD.

JOINT APPOINTMENTS IN THE BEST INTERESTS OF THE WARD MAY BE MADE OF:

1) Husband and wife;
2) Joint Managing Conservators;
3) Co-Guardians appointed under another state’s laws; AND
4) Both parents of an incapacitated adult.

Question 34

What is the qualification process for guardians?

Answer 34

A guardian has duly qualified when:

1) She has taken and filed the required OATH;
2) She has made and filed the required BOND (usually not required); AND
3) Judge has approved any required bond.

Question 35

What bond is required of a guardian?

Answer 35

Generally, must give bond in an amount and of the type DETERMINED BY THE COURT.

TYPES of bonds acceptable for guardians of PERSONS:

1) Corporate surety bond;
2) Personal surety bond;
3) Deposit of money; OR
4) Personal bond.

Bond for guardians of ESTATES - judge must set amount of bond in an amount sufficient to protect he guardianship and its creditors. The amount must equal the SUM OF THE FOLLOWING:

1) Estimated value of ALL personal property; AND
2) Additional amount to cover revenue expected to be derived during the next 12 months from interest, dividends, collectible claims, periodic payments, AND rentals.

Question 36

T/F - Bond is NOT required of a corporate fiduciary or a county guardianship program.

Answer 36

True.

Question 37

T/F - Bond is not required of a guardian of the person named by a surviving parent in a will or written declaration that waives the requirement of bond.

Answer 37

True.

Question 38

T/F - A court may waive the bond requirement for guardian of the estate.

Answer 38

False.

It cannot do so.

Question 39

What are letters of guardianship?

Answer 39

Clerk issues to the guardian a certificate under seal, and this constitutes LETTERS OF GUARDIANSHIP.

EXPIRES 1 YEAR AND 4 MONTHS AFTER THE DATE OF ISSUANCE, UNLESS RENEWED:

1) Clerk may NOT renew letters of guardianship relating to the appointment of a GUARDIAN OF THE ESTATE until the court receives and approves the guardian’s ANNUAL ACCOUNT.
2) Clerk may NOT renew letters of guardianship relating the the appointment of GUARDIAN OF THE PERSON until the court receives and approves the ANNUAL REPORT.

Question 40

Can one designate a guardian before the need arises? If so, what are the requirements.

Answer 40

Yes. A person who is not incapacitated may designate by a written declaration persons to serve as her guardian of the person or of her estate in the declarant becomes incapacitated.

FORMAL REQUIREMENTS - The declaration MUST BE SIGNED by the declarant AND BE:

1) Written wholly in the handwriting of the declarant; OR
2) Attested to in the presence of the declarant by AT LEAST TWO CREDIBLE WITNESSES 14 YEARS OF AGE OR OLDER who are NOT named as guardian or alternate guardian in the declaration.

NON-HOLOGRAPHIC DECLARATIONS - may be signed by another person for the declarant under the direction of and in the PRESENCE of the declarant. MAY HAVE SELF-PROVING AFFIDAVIT ATTACHED.

Question 41

T/F - A declarant may disqualify persons by name in a will or written declaration.

Answer 41

True.

Question 42

What must be done with a written declaration?

Answer 42

MAY BE FILED with the court at ANY TIME AFTER the application for appointment of a guardian is filed AND BEFORE a guardian is appointed.

Question 43

What is the effect of a written declaration?

Answer 43

Unless the court finds that the person designated in the declaration to serve as guardian is disqualified or would not serve the best interests of the ward, the court MUST APPOINT the person as guardian in preference to those otherwise entitled to serve as guardian under the TEC.

Question 44

Can written declarations or will provisions regarding guardianships be revoked?

Answer 44

Yes, MAY REVOKE a declaration in ANY MANNER provided for the revocation of a will.

Question 45

What is the effect of divorce on a guardianship?

Answer 45

If a declarant designates the declarant’s spouse to serve as guardian, and the declarant is subsequently divorced from that spouse before a guardian is appointed, the provision of the declaration designating the spouse has NO EFFECT.

Question 46

What form must a written declaration be in?

Answer 46

May be in any form adequate to clearly indicate the declarant’s intention to designate a guardian.

A STATUTORY FORM MAY BE USED.

Question 47

Are guardians compensated?

Answer 47

GUARDIANS OF THE PERSON - Compensation from available funds of the ward’s estate or other funds available for that purpose, in an AMOUNT NOT TO EXCEED 5% OF THE WARD’S GROSS INCOME.

GUARDIANS OF THE ESTATE - Entitled to REASONABLE COMPENSATION on application to the court, when the court approves any accounting filed by the guardian. FEE OF 5% OF THE GROSS INCOME OF THE WARD’S ESTATE AND 5% OF ALL MONEY PAID OUT OF THE ESTATE is generally considered REASONABLE if the court finds that the guardian has managed the estate in compliance with the standards of the TEC.

ADDITIONAL COMPENSATION POSSIBLE - Court may review and modify the amount of compensation generally authorized if the court finds that the amount is UNREASONABLY LOW when considering the services rendered as guardian. Customary charges are NOT determinative of whether unreasonably low.

Question 48

Can compensation be denied to the guardian?

Answer 48

The court MAY DENY a fee if the court finds that the guardian has not adequately performed her duties, or if she has been removed for cause.

Question 49

What if the guardian incurs expenses in handling its duties?

Answer 49

A guardian is entitled to be REIMBURSED from the guardianship estate FOR ALL NECESSARY AND REASONABLE EXPENSES incurred in performing any duty as guardian.

MAY BE REIMBURSED ONLY BY ORDER OF THE COURT.

Question 50

What about the court costs associated with a guardianship?

Answer 50

These are set in an amount the court considers EQUITABLE AND JUST. These costs are paid out of the guardianship estate OR the county treasury IF THE ESTATE IS INSUFFICIENT.

IF PARTY ACTED IN BAD FAITH OR WITHOUT JUST CAUSE, COURT COSTS MAY BE IMPOSED ON THE PARTY.

Question 51

Can guardianships be temporary?

Answer 51

Yes.

Court is presented with substantial evidence that a person may be a minor or other incapacitated person, AND the court has probable cause to believe that the person or person’s estate, or both, requires THE IMMEDIATE APPOINTMENT OF A GUARDIAN, then the court will appoint a TEMPORARY GUARDIAN WITH LIMITED POWERS.

Question 52

In a temporary guardianship, what powers are retained by the prospective ward?

Answer 52

Ward retains ALL RIGHT AND POWERS THAT THE COURT DOES NOT SPECIFICALLY GRANT to the person’s temporary guardian.

Question 53

What is the process of obtaining a temporary guardianship?

Answer 53

1) Application must be FILED;
2) Court appoints attorney to represent proposed ward if independent counsel has not been retained already;
3) Hearing is held, GENERALLY WITHIN 10 DAYS OF THE FILING of the application;

THE APPLICATION MUST STATE THE FOLLOWING:

1) Name and address of the allegedly incapacitated person;
2) Danger to the person or property alleged to be imminent;
3) Type of appointment and particular protection requested;
4) Facts and reasons supporting allegations and requests;
5) Proposed temporary guardian’s name, address, and qualifications;
6) Applicant’s name, address, and interest; AND
7) If applicable - that the proposed temporary guardian is a certified private professional guardian.

Question 54

What is the courts mental process in determining if a temporary guardianship is necessary after reviewing the application?

Answer 54

IF THE COURT DETERMINES THAT:

1) There is substantial evidence that the proposed ward is a minor or other incapacitated person; AND
2) There is IMMINENT DANGER that her physical health or safety will be seriously impaired; OR
3) Her estate will be seriously damaged or dissipated unless immediate action is taken, THEN
4) Court will appoint a temporary guardian and assign him only those powers and duties that are necessary to protect the proposed ward.

THE COURT WILL ALSO SET BOND FOR THE TEMPORARY GUARDIAN.

Question 55

What is the duration of a temporary guardianship?

Answer 55

MAY NOT REMAIN IN EFFECT FOR MORE THAN 60 DAYS.

Question 56

How does one qualify to be a temporary guardian?

Answer 56

A temporary guardian must qualify in the same form and manner required for a guardian generally.

Question 57

In a temporary guardianship, do letters of guardianship need to be issued?

Answer 57

NO LETTERS REQUIRED - court order appointing a temporary guardian takes effect WITHOUT the necessity for issuance of letters of guardianship.

Question 58

What are the powers of a temporary guardian?

Answer 58

Look to the court’s order. Evidence of the temporary guardian’s authority to act will be laid out there. Generally provisions of the TEC apply if made applicable.

Question 59

Is a temporary guardian required to give an accounting?

Answer 59

At the expiration of a temporary guardianship, the temporary guardian must file with the clerk of the court:

1) A sworn list of all property of the estate that has come into his hands;
2) A return of all sales made; AND
3) A full exhibit and account of all of his acts as temporary guardian.

Question 60

Generally, how does a guardian administer a guardianship of the person?

Answer 60

A guardian of the person is entitled to take charge of the person of the ward and generally has:

1) The right to physical possession of the ward and to establish his domicile;
2) The duty to provide care, supervision, and protection for the ward;
3) The duty to provide the ward clothing, food, medical care and shelter;
4) The POWER TO CONSENT TO MEDICAL TREATMENT (other than inpatient psychiatric commitment of an adult ward without consent); AND
5) The power to sign documents necessary or appropriate to facilitate employment of the ward, IF appointed with full authority over the person of the ward or if power is specified in court order.

Question 61

T/F - A guardian of an adult may expend funds for the guardianship as provided by court order to care for and maintain the ward.

Answer 61

True.

Question 62

T/F - Unless authorized by a court, a parent who is the guardian of the person of a ward who is 17 years of age or younger may NOT use the income or corpus from the ward’s estate for the ward’s support, education, or maintenance.

Answer 62

True

Question 63

What are the required annual reports in a guardianship of the person?

Answer 63

Guardian MUST FILE with the court a report (BY SWORN AFFIDAVIT) generally covering a 12 MONTH PERIOD that contains statutorily specified information.

Must file a sworn written report showing each receipt and disbursements for the support and maintenance of the ward, the education of the ward when necessary, and support and maintenance of the ward’s dependents, when authorized by order of court.

MUST FILE A SWORN AFFIDAVIT SETTING FORTH:

1) Guardian’s name, address, and phone number;
2) Ward’s date of birth, age, name, address, and phone number;
3) The type of home in which the ward resides and how long he has resided there;
4) The date the guardian most recently saw the ward, and how frequently the guardian has seen the ward in the past year;
5) Whether the guardian has possession or control of the ward’s estate;
6) Statements concerning the ward’s mental and medical care;
7) A description of the ward’s recreational, educational, social, occupational, and other activities;
8) The guardian’s evaluation of the ward’s living arrangements and the ward’s contentment therewith;
9) The guardian’s evaluation of the ward’s unmet needs;
10) Statement of whether guardian’s power should change;
11) Statement that guardian has paid bond premium;
12) IF private professional guardian - whether investigated; AND
13) ANY ADDITIONAL INFORMATION

Question 64

What is the guardian of the estate generally entitled to in carrying out its duties?

Answer 64

1) Possession and management of ALL property belonging to the ward;
2) Collect all debts, rentals, or claims that are due to the ward;
3) Enforce all obligations in favor of the ward; AND
4) Bring and defend suits by or against the ward.

Question 65

What is the standard of care for a GOE?

Answer 65

Duty to manage the estate as a PRUDENT PERSON would manage the person’s OWN PROPERTY.

Question 66

What is the standard of care for investments for GOEs?

Answer 66

In acquiring, investing, retaining, selling, and generally managing a ward’s estate, a guardian of the estate must:

1) Exercise the judgment and care under the circumstances then prevailing that persons of ordinary prudence, discretion, and intelligence exercise in the management of their own affairs; AND
2) Consider the probable income from as well as the probable increase in value and the safety of her capital.

Question 67

When making investment decisions, what factors must a GOE consider?

Answer 67

1) The anticipated costs of supporting the ward;
2) The ward’s age, education, current income, ability to earn additional income, net worth, and liabilities;
3) The nature of the ward’s estate; AND
4) Any other resources reasonably available to the ward.

Question 68

What are the statutory approved assets that are deemed prudent?

Answer 68

Includes many government bonds and shares of stock and interest-bearing accounts in banks that are federally insured.

Question 69

Which inception assets may be retained and for how long?

Answer 69

A GOE may retain, WITHOUT COURT APPROVAL, UNTIL THE FIRST ANNIVERSARY OF THE DATE OF RECEIPT, any property received into the guardianship estate at its inception or added by gift, devise, inheritance, or mutation without regard to diversification and without liability for any loss resulting from retention.

CAN KEEP THE ASSETS FOR JUST A YEAR.

Question 70

What must be done with the investment plan?

Answer 70

Unless the guardian invests the entire estate in assets approved by the statutory list, within 180 DAYS OF QUALIFYING AS GOE:

1) Guardian must file a written application with the court for an order authorizing the guardian to develop and implement an investment plan for estate assets and/or to take other action with respect to investments.

The guardian may also ask the court to MODIFY OR ELIMINATE the guardian’s duty to invest the estate.

Question 71

What is an inventory? When must it be filed?

Answer 71

REQUIRED BY THE 30TH DAY after the date the GOE qualifies. Must file a detailed inventory of all the ward’s property that has come into the guardian’s possession or knowledge.

Must identify all real property of the ward that is IN TEXAS and all personal property of the ward WHEREVER LOCATED.

Must specify SP and CP and interest in jointly-owned property.

Must contain the guardian’s appraisement of the fair market value of each item of the property on the date of the grant of letters of guardianship.

MUST ATTACH a complete list of all claims due or owing to the ward that states:

1) Name and (if known) address of each person indebted to the ward;
2) Nature of the debt;
3) Date of the indebtedness and its due date;
4) Amount of each claim and its terms related to interest; AND
5) What portion of the claim is held in common with others.

Question 72

What must a GOE do with personal property upon receiving letters of guardianship?

Answer 72

IMMEDIATELY MUST:

1) Collect and take into possession the personal property, record books, title papers, and other business papers of the ward; AND
2) Deliver the personal property, books, and papers of the ward to any person who is legally entitled to the same when the guardianship has been CLOSED or a successor guardian has received letters.

Question 73

In claims against the ward’s estate, what notice must the GOE give?

Answer 73

WITHIN ONE MONTH AFTER RECEIVING LETTERS, GOE must provide notice requiring all persons having a claim against the estate being administered to present the claim within the time prescribed by law.

NOTICE MUST BE:

1) Sent to TX comptroller by certified or registered mail if ward remitted or should have remitted taxes; AND
2) Published in a newspaper printed in the county where letters were issued or post the notice.

NOTICE MUST CONTAIN:

1) Date of letters;
2) Address to which claim may be presented; AND
3) Instruction that the claim be addressed in care of the guardian or her attorney.

Question 74

What notice from the GOE is due to secured creditors?

Answer 74

WITHIN FOUR MONTHS AFTER RECEIVING LETTERS, GOE must give notice of the issuance of the letters to every person having a claim for money against the estate of a ward if the claim is SECURED by a device on the real estate of the ward’s estate.

Question 75

What notice from the GOE is due to other known creditors?

Answer 75

Guardian must also give notice of the issuance of the letters to each person having a claim for money against the estate of a ward if the guardian has ACTUAL KNOWLEDGE of the claim.

PERMISSIVE NOTICE: guardian of the estate may expressly state in this notice to a known unsecured creditor that it must present a claim NOT LATER THAN THE 120TH DAY after the date on which the unsecured creditor receives the notice or the claim is BARRED.

Question 76

What are the procedures for payment of claims?

Answer 76

Claims must be AUTHENTICATED by claimant’s affidavit.

A secured creditor may present its claim as a:

1) MATURED SECURED CLAIM to be paid in due course of administration; OR
2) PREFERRED DEBT AND LIEN against the specific property securing the debt, payable according to its terms.

Question 77

What are the required initial accounts?

Answer 77

NOT LATER THAN THE 60TH DAY AFTER THE FIRST ANNIVERSARY OF DATE OF QUALIFICATION, GOE must file an account consisting of a written exhibit under oath.

ACCOUNT MUST:

1) Set forth a list of all claim against the estate that were presented to the guardian; AND
2) Specify which claims have been allowed, paid, or rejected and which claims have been the subject of a lawsuit and the status of the lawsuit.

ACCOUNT MUST SHOW:

1) All property that has come to the guardian’s knowledge or into her possession that has not been previously listed or inventoried;
2) Any changes in the property of the ward that have not been previously reported;
3) A complete account of all receipts and disbursements for the period covered by the account;
4) A complete description of the property being administered and its condition, as well as how it is being used;
5) The cash balance on hand and the name and location of the bank where the cash balance is kept; AND
6) A detailed description of personal property of the estate, including detailed information about bonds, notes, and other securities.

Question 78

What is required in an annual account?

Answer 78

A GOE must file annual accounts conforming to the requirements governing the initial account as to changes in the assets of the estate.

Vouchers or other corroborating evidence for each item of credit claimed in the account must be attached.

GUARDIAN MUST ATTACH:

1) Letter from each bank show amounts deposited; AND
2) Proof of the existence and possession of securities.

GUARDIAN MUST ATTACH AN AFFIDAVIT TO EACH REPORT ATTESTING TO ITS ACCURACY, THE GUARDIAN’S PAYMENT OF THE WARD’S TAXES, AND CERTAIN OTHER FACTS.

Question 79

T/F - On application to the court, and if authorized by court order, the guardian of the estate may renew or extend any obligation owed by or to the ward.

Answer 79

True

Question 80

T/F - Mortgaging and pledging property of an estate requires a court order and is available only for limited purposes.

Answer 80

True

Question 81

What purposes may a court allow a GOE to mortgage or pledge property of the estate?

Answer 81

1) Paying any ad valorem, income, gift, or transfer taxes due from a ward;
2) Paying any expenses of administration;
3) Paying claims allowed and approved, or established by lawsuit, against the ward or his estate;
4) Renewing and extending a valid, existing lien;
5) Making improvement or repairs to the real estate of the ward to enhance its revenue generating capacity;
6) If in the BEST INTERESTS OF THE WARD, purchasing a residence for the ward or for a dependent of the ward; AND
7) Paying funeral expenses of the ward and expenses of the ward’s last illness.

Question 82

Can a GOE receive an extension of credit secured by a lien on the ward’s homestead?

Answer 82

Yes, under COURT ORDER, when necessary to:

1) Make improvements or repairs to the homestead; OR
2) Pay for education or medical expenses of the ward.

Question 83

T/F - A GOE may borrow money upon obtaining a court order to do so under limited purposes.

Answer 83

True

Question 84

When can a GOE sell property in the estate of a ward?

Answer 84

Generally requires a court order (granted only in limited circumstances).

SALE OF REAL PROPERTY MAY BE AUTHORIZED TO:

1) Pay expenses of administration, allowances, and claims against the ward or his estate, and to pay his funeral expenses and the expenses of his last illness;
2) Make up the deficiency when the income of a ward’s estate, the personal property of the ward’s estate, and the proceeds of previous sales, are INSUFFICIENT to pay for the education and maintenance of the ward or to pay debts against the estate;
3) Dispose of an undivided interest in real estate when it is deemed in the best interests of the estate to sell the interest;
4) Dispose of real property, any part of which is non-productive or does not produce sufficient revenue to make a fair return on the value of the real estate–improvement is not deemed advisable; OR
5) Conserve the estate by selling mineral interests or royalties or minerals in place.

SALE OF PERSONAL PROPERTY:

MANDATORY - GUARDIAN SHALL APPLY FOR AN ORDER TO SELL PERSONAL PROPERTY:

1) Liable to waste, perish, or deteriorate; OR
2) That will disadvantage the estate if retained.

PERMISSIVE - MAY BE ORDERED BY THE COURT ON APPLICATION OF GUARDIAN:

1) If the court finds that the sale of the property would be in the best interests of the ward or his estate in order to pay expenses of the care, maintenance, and education of the ward or his dependents, expenses of administration, allowances, or claims against the ward or the ward’s estate, and funeral expenses of the ward and expenses of the ward’s last illness.

Question 85

T/F - A court may order a guardian of the estate to expend funds from the ward’s estate for the education and maintenance of the ward’s spouse or dependent.

Answer 85

True

Question 86

T/F - A court may, upon application, order a monthly allowance to be expended from the ward’s estate for the education and maintenance of the ward and the maintenance of his property.

Answer 86

True

IF THERE IS ANOTHER GOP of the same ward, GOE may be required to pay a portion of the allowance to that GOP.

Question 87

When must an application for a monthly allowance be filed?

Answer 87

Application for monthly allowance generally must be filed WITHIN 30 DAYS OF QUALIFICATION AS GUARDIAN.

Question 88

What does the Texas Uniform Transfers to Minors Act allow for?

Answer 88

Guardian may make an IRREVOCABLE TRANSFER to another adult or trust company as custodian for the minor’s benefit under the Act.

Question 89

What are some additional actions that a guardian may do with a court order?

Answer 89

If in the best interest of the estate and if authorized by an order of the court, a GOE may:

1) Purchase or exchange property;
2) Take a claim or property for the use and benefit of the estate in payment of debt due it;
3) Compound a bad or doubtful debt;
4) Make a compromise or settlement in relation to property or a claim in dispute or litigation;
5) Compromise or pay in full any secured claim that has been allowed and approved by conveying to the holder of the secured claim the property securing the claim;
6) Abandon worthless of burdensome property;
7) Purchase a prepaid funeral benefits contract; AND
8) Establish a trust under 42 USC Section 1396 and direct that the income of the ward has defined by that section be paid directly to the trust, solely for the purpose of the ward’s eligibility for medical assistance.

Question 90

What actions may a GOE perform NOT requiring a court order?

Answer 90

1) Release a lien on payment at maturity of the debt secured by the lien;
2) Vote stocks by proxy;
3) Pay calls and assessments;
4) Insure the estate against liability in appropriate cases;
5) Insure property of the estate against fire, theft, and other hazards;
6) Pay taxes, court costs, and bond premiums; AND
7) Rent property for less that one year as the guardian deems in the best interests of the estate–IF rental period is one year or more, guardian must file written application with the court.

Question 91

What happens if the guardian dies?

Answer 91

A personal representative of the deceased guardian must account for, pay, and deliver to a person legally entitled to receive the property, ALL the property belonging to the guardianship entrusted to the representative.

Question 92

What if the guardian resigns? Is discharge immediate? What happens to the estate?

Answer 92

GOP - Must file with the clerk a written application to the court, accompanied by a verified report setting forth the information required in the annual report, showing the condition of the ward.

GOE - Must file with the clerk a written application to the court, accompanied by a complete exhibit and FINAL ACCOUNT, showing the condition of the guardianship estate.

DISCHARGE IS NOT IMMEDIATE, IT REQUIRES A COURT ORDER FIRST.

The court at any time may order a resigning guardian deliver ALL OR PART of the ward’s estate to a person who has been APPOINTED and has qualified as successor guardian.

Question 93

Can a guardian be removed without notice?

Answer 93

REMOVAL WITHOUT NOTICE - The court, on its own motion or on motion of ANY INTERESTED PERSON and without notice, may remove any guardian appointed who:

1) Neglects to qualify as a guardian;
2) Fails to return WITHIN 30 DAYS after qualification an INVENTORY of the property and list of claims (in the case of a guardian of the estate);
3) Having been required to give a new bond, fails to do so;
4) Is absent from Texas for a period of THREE MONTHS WITHOUT PERMISSION OF THE COURT;
5) Cannot be served with notices or other processes because of his UNKNOWN WHEREABOUTS, his eluding service, or his being a nonresident without a resident agent to accept service of process;
6) Has misapplied, embezzeled, or removed from Texas, or is about to misapply, embezzle, or remove from Texas, at least some of the ward’s estate;
7) Has engaged in conduct with respect to an elderly or disabled ward that would be considered abuse, neglect, or exploitation; OR
8) Has neglected to educate or maintain the ward as liberally as the means of the ward and the condition of the ward’s estate permit.

NOTE: When removal is sought under grounds 6, 7, or 8, the court SHALL APPOINT a guardian ad litem and an attorney ad litem (can be the same person.

NOTE: A court may remove a guardian under grounds 6 and 7 ONLY on the presentation of CLEAR AND CONVINCING EVIDENCE.

Question 94

When can a guardian be removed with notice?

Answer 94

After the guardian has been cited by personal service to answer at a time and place set in the notice, a court may remove a guardian.

Among the GROUNDS justifying removal with notice are that the guardian:

1) Is proved to have been guilty of gross misconduct or mismanagement;
2) Has become incapacitated; OR
3) Has disobeyed a court order in a guardianship matter.

Question 95

How does a court go about appointing a successor guardian?

Answer 95

WHEN: If a guardian dies, resigns, or is removed, the court may, on application and on service of notice as directed by the court, appoint a successor guardian.

Finding that a necessity for the immediate appointment of a successor guardian exists permits the appointment of a successor guardian WITHOUT NOTICE TO OTHERS.

Question 96

What are the powers of a successor guardian?

Answer 96

A successor guardian has the powers and rights and is subject to all of the duties of the preceding guardian.

Question 97

What is the recent statutory amendment dealing with successor guardians?

Answer 97

Appointment of a successor guardian does NOT preclude an interested person from filing an application to be appointed guardian of the ward for whom the successor guardian was just appointed.

COURT HOLDS A HEARING - may set aside appointment of successor guardian and appoint applicant if not disqualified.

Question 98

T/F - Unless otherwise lawfully discharged, a guardian remains in office until the ward deceases.

Answer 98

False

Until the estate is closed.

Question 99

When are guardianships to be closed?

Answer 99

MUST BE CLOSED WHEN THE INCAPACITATED PERSON:

1) Dies;
2) Is found by the court to have full capacity to care for himself and to manage his property;
3) Is no longer a minor (grows up);
4) No longer must have a guardian appointed to receive funds due him from any governmental source.

ADDITIONAL GROUNDS FOR CLOSING A GOE:

1) Minor ward dies or becomes an adult;
2) Incapacitated ward dies, or is decreed to have been restored to fully legal capacity;
3) The spouse of a married ward has qualified as survivor in community and the ward owns no separate property;
4) The estate of a ward becomes exhausted;
5) The foreseeable income accruing to a ward or to the ward’s estate is so negligible that maintaining the guardianship would be BURDENSOME;
6) All of the assets of the estate have been placed in a MANAGEMENT TRUST OR TRANSFERRED TO A POOLED TRUST and the court determines that a guardianship of the ward’s estate is no longer necessary; OR
7) The court determines for ANY OTHER REASON that a guardianship for the ward is no longer necessary.

Question 100

T/F - When the estate of a minor ward consists only of cash or cash equivalents in an amount of $1,000 or less, the guardianship of the estate may be terminated and the assets paid to the county clerk.

Answer 100

False

$100,000 or less

Question 101

What are the duties of a GOP when the estate of a ward is to be closed?

Answer 101

GOP must deliver all of the ward’s property in her possession to the emancipated ward or other person entitled to the property.

Question 102

What are the duties of a GOE when the estate of a ward is to be closed?

Answer 102

GOE must present to the court the guardian’s VERIFIED ACCOUNT for final settlement. Upon examining the account for final settlement and the vouchers accompanying it, the court will audit and settle the account.

On final settlement of an estate, the court will order delivery of any part of the estate remaining to the ward or any person legally entitled to the estate.

When the guardian of the estate has fully administered the estate, the guardian’s final account has been approved, and the guardian has delivered all of the remaining estate to any person entitled to receive it—-The court then enters an order DISCHARGING the guardian and declaring the estate closed.

Question 103

T/F - There are limited situations where an incapacitated person’s estate can be administered WITHOUT the appointment of a guardian of the estate.

Answer 103

True

Question 104

What happens when a husband or wife is judicially declared to be incapacitated? Discuss removal in such situations.

Answer 104

The other spouse acquires full power to manage, control, and dispose of the ENTIRE COMMUNITY ESTATE AS COMMUNITY ADMINISTRATOR, including the part of the community estate that the incapacitated spouse legally has the power to manage in the absence of the incapacity, without a formal administration.

If the incapacitated spouse owns SP, court will appoint the other spouse or another person as guardian of the estate to administer ONLY the SP of the incapacitated spouse.

REMOVAL - A spouse appointed as community administrator may be removed by the court for causes specified by statute, which include:

1) Failing to comply with a court order for an inventory, appraisement, or account;
2) Embezzlement; AND
3) Gross mismanagement.

Question 105

When can a GOP sell property?

Answer 105

When a ward has an interest in property and the net value of the interest does NOT EXCEED $100,000, the GOP may apply under oath to the court for an order to sell the ward’s interest in the property WITHOUT being appointed guardian of the estate.

PURCHASER OF THE PROPERTY must pay the proceeds of the sale belonging to the ward INTO THE COURT REGISTRY.

Question 106

Can a parent, absent a guardianship, sell property of an incapacitated minor?

Answer 106

When a minor has an interest in property and the net value of the interest DOES NOT EXCEED $100,000, a parent or the managing conservator of a minor who is not yet a ward may apply to the court for an order to sell the minor’s interest in the property WITHOUT BEING APPOINTED GUARDIAN.

PURCHASER of the property must pay the proceeds of the sale belonging to the minor INTO THE COURT REGISTRY.

Question 107

How are claims paid without a guardianship?

Answer 107

When a resident incapacitated person is without a legal guardian of the person’s estate and the person is entitled to money in an amount that is NOT OVER $100,000, the right to which is liquidated and is uncontested, a DEBTOR MAY PAY the money to the county clerk of the county in which the creditor resides to the account of the creditor (the incapacitated person).

WHO MAY SERVE AS A CUSTODIAN FOR THE RESIDENT CREDITOR?

The creditor’s parent or unestranged spouse, with priority being given to the spouse who resides IN TEXAS; OR if there is no spouse and both parents are dead or are nonresidents of Texas, then the TEXAS resident who has ACTUAL CUSTODY of the creditor.

THE CUSTODIAN MUST FILE WITH THE COUNTY CLERK A SWORN REPORT OF HER ACCOUNTING FOR HER USE OF THE FUNDS.

Question 108

What is the durable power of attorney?

Answer 108

Authorizes an agent to act on behalf of another, the principal WITHOUT the agent’s being appointed guardian of the principal’s estate, EVEN IF THE PRINCIPAL BECOMES INCAPACITATED.

The DPA is defined as a written instrument that:

1) Designates another person as attorney in fact or agent;
2) Is signed by an adult principal;
3) Contains the words: “This power of attorney is not affected by subsequent disability or incapacity of the principal,” or similar words showing the principal’s intent that the authority conferred on the attorney in fact or agent will be exercised notwithstanding the principal’s subsequent disability or incapacity; AND
4) Acknowledged by the principal before a notary.

Question 109

What are the effects of an agent with the DPA who acts on behalf of the principal?

Answer 109

All acts done by an attorney in fact or agent pursuant to a DPA have the same effect and inure to the benefit of and BIND THE PRINCIPAL as if the principal were not disabled or incapacitated.

Question 110

What happens to an agent with the durable power of attorney when the principal is appointed a guardian?

Answer 110

When the court appoints a PERMANENT GUARDIAN OF THE ESTATE of the principal, the powers of the attorney in fact or agent TERMINATE on the qualification of the guardian of the estate.

IF A TEMPORARY GUARDIAN OF THE ESTATE of the principal is appointed, the court MAY SUSPEND the powers of the attorney in fact or agent on the qualification of the temporary guardian of the estate UNTIL THE TERM OF THE TEMPORARY GUARDIAN EXPIRES.

Question 111

What happens in a DPA when the principal and agent are married and then divorce?

Answer 111

If, after execution of a DPA, the principal is divorced from the person who has been appointed the principal’s attorney in fact, the powers of the attorney in fact or agent TERMINATE ON THE DATE ON WHICH THE DIVORCE IS GRANTED BY THE COURT.

Question 112

What duties does an agent with the DPA have?

Answer 112

The attorney in fact or agent is a FIDUCIARY and has a DUTY TO INFORM the principal and DUTY TO ACCOUNT for actions taken pursuant to the power of attorney.

Question 113

What is the Statutory Durable Power of Attorney?

Answer 113

A person may use a statutory DPA to grant an attorney in fact or agent specified powers with respect to a person’s property and financial matters. The standard provisions may be modified on thee statute form by completing a separate section creating special limitations on and extensions of the agent’s powers.

BROAD AUTHORITY - the principal, by executing a statutory DPA that confers authority with respect to any class of transactions, empowers the attorney in fact or agent for that class of transactions to do ANY LAWFUL ACT that the principal may do with respect to a transaction.

THE STATUTORY FORM IS NOT REQUIRED. It is merely an easy form that will have statutory enforcement.

RECENT STATUTORY CHANGE - deletion of paragraph conferring a general power of attorney on the agent–must create your own clause.

Question 114

What is the medical power of attorney?

Answer 114

Executed as provided in the Texas Health and Safety Code.

Agent may make any health care decisions on the principal’s behalf that the principal could make if the principal were competent.

Question 115

What is the Texas Uniform Transfers to Minors Act?

Answer 115

Simple, cost-effective way to transfer property to a custodian for the benefit of a child UNTIL the child TURNS 21 YEARS OLD.

Question 116

How is a transfer under the Uniform Transfers to Minors Act created?

Answer 116

Requires that the transferor designate the transferee as custodian for the child under TUTMA, with any title being held by the custodian in her capacity as custodian.

Question 117

How are custodianships created under the Uniform Transfers to Minors Act?

Answer 117

WAYS TO CREATE A CUSTODIANSHIP

1) A security is:
a) Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for (name of minor) under the Texas Uniform Transfers to Minors Act,” OR
b) Delivered.
2) Money is paid to a financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for (name) under the Texas Uniform Transfers to Minors Act”;
3) The ownership of a LIFE OR ENDOWMENT INSURANCE POLICY or annuity contract is registered with the issuer in the name of the transferor, an adult ther than the transferor, or trust company, followed in substance by the TUTMA words;
4) An interest in REAL PROPERTY is conveyed by instrument recorded in the real property records in the county in which the real property is located to the transferor, an adult other than the transferor, or a trust company followed in substance by the TUTMA words; OR
5) A CERTIFICATE OF TITLE issued by the state that evidences title to tangible personal property is issued in the name of the transferor, an adult other than the transferor, or a trust company, followed by the TUTMA words.

Question 118

What are the modes of transfer under TUTMA?

Answer 118

May be made by way of life time gift, exercise of a power of appointment, and by will (among many other ways).

Question 119

What is the effect of a transfer under TUTMA?

Answer 119

Transfer is IRREVOCABLE and the custodial property is INDEFEASIBLY VESTED IN THE MINOR.

Custodian has ALL THE RIGHTS, POWERS, DUTIES, AND AUTHORITY PROVIDED UNDER TUTMA, and the minor or the minor’s legal representative does not have any right, power, duty, or authority with respect to the custodial property except as provided by TUTMA.

Question 120

How must a custodian care for custodial property under TUTMA? What duties are there?

Answer 120

A custodian must:

1) Take control of custodial property;
2) Register or record title to custodial property; AND
3) Collect, hold, manage, sell, convey, invest, and reinvest custodial property.

STANDARD OF CARE - that of a PRUDENT PERSON dealing with property of another. There is no statutory restrictions on investments here. If a custodian has a special skill or expertise, the custodian MUST USE THAT SKILL OR EXPERTISE.

DUTY WITH RESPECT TO INCEPTION ASSETS: A custodian, in its discretion and without liability to the minor or the minor’s estate, may retain any custodial property received from transferor.

DUTY NOT TO COMMINGLE - Custodian must keep custodial property separate and distinct from all other property.

Question 121

What are the powers of a custodian?

Answer 121

Has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property.

Question 122

How are payments and expenditures handled under TUTMA?

Answer 122

A custodian may deliver or pay to the minor or expend for the minor’s benefit as much of the custodial property as the custodian considers advisable for the use and benefit of the minor:

1) Without court order; AND
2) Without regard to: (a) the duty or ability of the custodian personally or of any other person to support the minor; OR (b) any other income or property of the minor that may be applicable or available for that purpose.

Question 123

What is the custodian’s discretion under TUTMA subject to?

Answer 123

JUDICIAL REVIEW can be sought by PETITION of an INTERESTED PERSON OR the minor if the minor is at least 14 YEARS OF AGE.

Court may order the custodian to deliver or pay to the minor or expend for the minor’s benefit as much of the custodial property as the court considers advisable for the use and benefit of the minor.

Question 124

Are custodians under TUTMA entitled to reimbursement and compensation?

Answer 124

Entitled to reimbursement from custodial property for REASONABLE EXPENSES incurred in the performance of the custodian’s duties.

Noncumulative election during each calendar year to charge reasonable compensation for services performed by the custodian DURING THAT YEAR.

Question 125

T/F - A custodian is generally required to give bond under TUTMA.

Answer 125

False.

They are generally not required to give bond.

Question 126

Can a custodian under TUTMA resign?

Answer 126

MAY resign at any time by:

1) Delivering written notice to the successor custodian and to the minor (if the minor is at least 14 years of age); AND
2) Delivering the custodial property to the successor custodian.

Question 127

Who designates a successor custodian?

Answer 127

THE PRECEDING CUSTODIAN.

Question 128

How are custodianships under TUTMA terminated?

Answer 128

The custodian must generally transfer the custodial property to the minor or to the minor’s estate on the earlier of the date that the minor dies or that the minor attains 21 YEARS OF AGE.

Question 129

How may a trust be used instead of a guardianship?

Answer 129

Preferable to a guardianship of the estate in most circumstances. Settlor determines the terms of trusts. Administered by trustees free of the detailed court supervision required of guardianships.

Question 130

How may a convenience account be used instead of a guardianship?

Answer 130

Established with a bank.

Allows a person to open an account and name another with authority to write checks on the account on behalf of the account owner.

Question 131

T/F - The finding of incapacity must be made based on more than isolated instances of bad judgment; repeated acts within the previous six months indicating incapacity are required.

Answer 131

True.

Question 132

What physician statement is required for the guardianship of someone who is not a minor and does not need a guardianship to receive funds from a governmental source?

Answer 132

The court may not grant an application to create a guardianship for an incapacitated person, other than a minor or person for whom it is necessary to have a guardian appointed to receive funds from a governmental source, unless the applicant presents to the court a written letter or certificate from a physician licensed in Texas that is dated not earlier than 120 DAYS before the filing of the application and based on an examination that the physician performed not earlier than 120 DAYS before the date of the filing of the application.

The letter or certificate must:

(i) describe the nature, degree, and severity of incapacity;
(ii) provide an evaluation of the proposed ward’s physical condition and mental function;
(iii) state how or in what manner the proposed ward’s ability to make or communicate responsible decisions concerning himself is affected by the person’s physical or mental health;
(iv) state whether any current medication affects the demeanor of the proposed ward;
(v) describe the physical and mental conditions underlying a diagnosis of mental disability; and
(vi) include other information required by the court.