TBE GUARDIANSHIP--Quick & Dirty Rules Flashcards
Guardianship Admin
1) Guardian of Person (rights/duty; requirements)?
2) Guardian of Estate (rights/duty; restriction)?
3) Appointment of Guardian (who can do it; how to do it; if written, what requirements)?
Guardianship Administration
1) Guardian of Person
The Guardian of a Person has the right to physical possession of the ward, duty of care control and possession, duty to provide clothing, food, medical care and shelter, and power to consent to medical and psychiatric treatment.
The guardian of person can be named in a will and no bond is required.
2) Guardian of Estate
The Guardian of an Estate, on the other hand, has the right and duty to manage the ward’s property, enforce the ward’s obligations, and bring or defend suits by or against the ward.
Generally, parents have no authority to deal with their child’s property. They must get appointed as the guardian of the estate.
Except, if the value of the child’s entire interest in all of
the property inherited is less than $100,000, then a parent, managing conservator, or guardian of person can obtain a court order authorizing a sale of stock without the appointment of a guardian of the estate.
In this case, sale proceeds are paid into the court registry and handled by Court.
Opposite to the guardian of person, the guardian of estate cannot be named in a will and a bond is required.
3) Appointment of Guardian
Generally, the surviving parent may, by a will or written
declaration, appoint a guardian of his minor child or
incapacitated adult child in the event of the parent’s
subsequent death or incapacity.
The named person must be appointed guardian unless Court finds that he is disqualified, dead, or would not serve in child’s best interest.
For a written declaration, execution requirements are the same as for wills:
a) Also, a written declaration can be wholly in parent’s
handwriting and signed by the parent.
b) And if not, written declaration must be signed by the parent or on his behalf by another person at the parent’s direction and in his presence and must be witnessed by 2 witnesses who are 14 or older.
Nevertheless, a parent can waive the fiduciary bond requirement in the will for someone serving as the guardian of the person, but he cannot waive the fiduciary bond requirement in the will for someone serving as the guardian of estate.
Now, if neither parent named a guardian, children age 12 or older can choose their guardian in a writing filed with Court unless Court vetoes as it is not in the child’s best interest.
4) Who can be a guardian (eligibility?
–presumption
–minor v. adult ward
5) Disqualifying Guardian
–even if eligible, guardian can still be disqualified for (5):
–presumption UNLESS (2):
4) Eligibility of Guardian
To be eligible as an appointed guardian of the person and estate of a minor, a person has to be the parent. Of course, the last surviving parent can name guardian of their child.
It is presumed that a person designated by a parent is in the child’s best interest, but this presumption is not conclusive.
To be eligible as an appointed guardian of the person and estate of an incapacitated adult, a person has to be either named by the last surviving parent in a will or other written declaration, or a competent adult may designate a guardian by a written declaration to serve as his guardian of the person or estate if he becomes incapacitated.
If no such declaration exists, then either the spouse or the next of kin in the nearest degree of kinship is eligible.
Also, 2 persons cannot be appointed co-guardians except for husband and wife.
5) Disqualifying Guardian
And even if the guardian is eligible, he can be disqualified from being appointed guardian due to the following reasons:
a) There is a conflict of interest:
b) He becomes incapacitated.
c) If he is inexperienced, has lack of education, or is incapable of prudently managing an estate for other reasons.
d) He is expressly disqualified in the designation of guardian before the need arises.
e) Or he is convicted of sexual offense, sexual assault, injury to a child or elderly person.
Now, there is presumed conflict of interest when the guardian owes money to the ward or is asserting claim against proposed ward unless:
a) Court determines there is no conflict,
b) Or a guardian ad litem is appointed to represent proposed ward.
6) Incapacitated Persons
–adult incapacitated?
–Order appointing guardian must specify (2):
–if ward rehabilitates?
–safeguarding ward’s rights (2)?
–Court requirements?
–Evidentiary standard?
–Burden on findings?
6) Incapacitated Persons
There is limited guardianship for incapacitated adults.
Probate Code urges Court to order limited guardianships so that the ward does not lose all legal and civil rights.
The order appointing a guardian must specify:
a) The powers, duties, and limitations of the guardian,
b) The amount of the ward’s funds that can be expended for the ward’s care without court approval.
And if the ward regains some of his cognitive skills, the ward or an interested person can petition to have the guardianship modified or terminated.
There are some safeguards in an incapacity proceeding to insure that the ward’s rights are protected include:
a) There is a mandatory appointment of attorney ad litem and court investigator.
b) There is a discretionary appointment of guardian ad litem and court visitor.
The ward must be present at the trial, unless the court
determines appearance is not necessary.
And the proposed ward can ask for a jury trial, which is
mandatory upon motion.
The evidentiary standard as to whether the proposed ward is incapacitated is clear and convincing evidence.
All other findings are by a preponderance of the evidence.
7) Timelines (appointment)
–What does guardian need to do within how long after appointment (4)?
8) Reimbursement of Guardian
–how does Guardian get reimbursed?
9) Guardian Removal
- -How does Guardian get removed (requirements by what legal standard)?
- —–Court removal w/out notice (3)?
- —–Court removal only after notice (4)?
7) Timelines
If a guardian is appointed, then the letters of guardianship are valid for 16 months.
Also, there are some actions the guardian needs to take within 60 days after appointment. The guardian needs to:
a) Be qualified by taking oath and posting fiduciary bond within 20 days.
b) Publish notice of administration in newspaper of general circulations within 1 month.
c) File inventory of the estate within 30 days.
d) And file an application of monthly allowance to be expended from income and principal on the ward’s behalf, stating separate amounts requested for the ward’s education and maintenance and the maintenance of wards property within 30 days.
8) Reimbursement of Guardian
For the guardian to be reimbursed for expenditures on the ward in excess of the court-approved monthly allowance, he needs to provide clear and convincing evidence that the expenditures were reasonable and proper.
9) Guardian Removal
Furthermore, to remove a guardian, the below requirements must be shown with clear and convincing evidence.
Court may remove a guardian without notice or hearing if the guardian:
a) Fails to qualify by giving oath and bond within 20 days or fails to file inventory within 30 days.
b) Moves from Texas, is absent from Texas for more than 3 months, cannot be served with notices or other processes because his whereabouts are unknown, or is evading service,
c) Or has treated the ward cruelly, has failed to maintain or educate the ward, has misapplied assets, or has removed assets from Texas.
Court may remove a guardian but only after notice or hearing if:
a) There are grounds to believe that he has cruelly treated the ward, has failed to educate or maintain the ward, has misapplied or embezzled assets, or has removed assets from the state,
b) He is guilty of gross misconduct or mismanagement,
c) He fails to comply with a court order or fails to file an
accounting, both of which are required,
d) Or if he becomes incapacitated, is sentenced to the
penitentiary, or for some other reason is incapable of properly performing the duties.
Again, there must be clear and convincing evidence to prove so.
10) Responsibilities of Guardian
–guardian’s duty ($)?
–must file for application for order before to (2)?
11) Guardian’s Authority
–4 things guardian can do w/out court order/approval?
–sale of property from guardianship estate only for purpose of (3)?
10) Responsibilities of Guardian
First, the guardian has a duty to invest all funds and assets that are not immediately needed for the ward’s education, maintenance, or support.
Second, the guardian must file application for an order either:
a) Authorizing him to develop and implement an investment plan for estate assets,
b) Or modifying or eliminating the duty to invest within 180 days after appointment.
After an investment plan has been approved by Court, the guardian must manage and invest the estate as a prudent person would in managing his own affairs.
11) Guardian’s Authority
There are 4 things a guardian can do without court order or approval:
a) He can retain property received at inception of the
guardianship or thereafter acquired by gift, will, or
inheritance, with no duty to diversify, and with no liability
for any resulting depreciation or loss for a period of 1 year.
b) He may make investment decisions that are consistent with the investment plan approved by Court.
c) When obtaining court approval is not convenient or
possible, the guardian may expend amounts in excess of monthly allowance fixed by Court, if there is clear and convincing evidence that the expenditures were reasonable and proper.
d) Guardian can insure property, pay taxes, pay court
costs, pay bond premiums, get release lien on payment of debt, vote stocks, pay calls and assessments on investments.
Now, the sale of real or personal property of the guardianship estate, which always requires court approval, can be made only for purpose of:
a) Pay claims and expenses.
b) Ward’s maintenance.
c) And dispose of unproductive property.
12) Guardian Compensation
–what restrictions?
13) Governmental Benefits
–what amount or less if ward has no money can guard get govt benefits?
14) Power to Make Tax Motivating Gifts
–two purposes. court authorized.
15) Jurisdiction of Probate Court
–appointment of guardian for minor
–appointment of guardian for adult
–appointment of guardian pursuant to a will
16) Standing
–who has it?
12) Guardian Compensation
Some restrictions are given to guardians’ compensation.
The compensation of a guardian of person cannot exceed 5% of the ward’s gross income.
The guardian of estate is entitled to a reasonable compensation of 5% of the ward’s gross income plus 5% of all money paid out of the estate is considered reasonable if the guardian has taken care of and properly managed the ward’s estate.
13) Governmental Benefits
If an incapacitated adult has such a small estate that no
guardianship is necessary but receives a pension that cannot be paid to anyone other than a guardian of the estate, then the guardian of person can be appointed guardian to receive funds from governmental source and can expend the pension payment on ward’s behalf without court approval if the amount is $12,000
per year or less.
14) Power to Make Tax Motivating Gifts
General rule: Court may authorize the establishment of an estate plan of the purpose of minimizing income, estate, or other taxes if it is shown that the ward will probably remain incapacitated during his lifetime.
Court can also approve a charitable gift out of income if:
The gift will qualify for an income charitable deduction,
Net income from estate will probably exceed $25,000,
And the gift will probably not exceed 20% of ward’s net income for the year.
15) Jurisdiction of Probate Court
The general rule is that the Probate court is the proper place to raise issues when the issues are incident to the guardianship estate.
For Example, the husband is incapacitated, and the wife, who was the guardian, resigns as guardian and files for divorce, which raises issues about child custody and child support.
And there are different rules of venue.
The venue for appointment for guardian of minor is at the county where the parents, or parent who is managing conservator, reside.
The venue for the guardian of an incapacitated adult is the county where the proposed ward resides or the county where principal estate is located.
And the venue for the appointment of guardian named in a parent’s will is the county where the will was probated or the county where the appointee resides.
16) Standing
To have standing to file a will contest, a person must have an economic interest adversely affected by the will’s admission to probate.
And any person has standing to commence a guardianship proceeding. If the person does bring a proceeding but is unsuccessful, then he is entitled to recover attorney fees from the proposed ward’s estate if he acted in good faith.
