TBE--T/G & C.R. (Guardianship) Flashcards
07/13 #7:
Will, a never-married, retired sixty-five year old, lives alone in a modest one-bedroom house, where he has lived for the last thirty (30) years. Will and his long-time neighbor and close friend, George, have seen each other virtually every day in that time and have spent countless hours fishing, playing cards, and discussing baseball.
Recently, George has noticed Will becoming more forgetful about things like dates and telephone numbers. Occasionally, Will has appeared momentarily disoriented. George also suspects that Will has missed meals due to his forgetfulness. George became very alarmed when Will told him recently that he had withdrawn all his life savings from the bank, about $50,000, and placed the cash in a suitcase under his bed to “keep it safe.”
Will’s only surviving family member, a distant uncle, recently died and left his entire estate to Will. The uncle’s sizable estate includes real property, securities, and cash valued at $10 million.
George, a partner in a large accounting firm, is concerned that, in light of Will’s recent, erratic behavior, he is not capable of managing his sizable inheritance. George files a guardianship proceeding in probate court and asks that he be appointed as the guardian of Will’s person and Will’s estate.
At the hearing on whether to appoint a guardian, George provides evidence regarding Will’s recent behavior. He also presents a report from a doctor who concludes that Will is beginning to suffer from slight memory loss, lacks an appreciation for the sizable estate he has inherited and is completely unsophisticated in financial matters. In the doctor’s opinion, Will is incapable of managing a sizable estate.
Will testifies on his own behalf and disclaims any physical or mental impairment, and asks the court to dismiss the proceeding. Alternatively, Will specifically requests that his former Banker be appointed as his
guardian and, annoyed with what he considers interference with his personal affairs by George, further requests that it not be George, his “former friend.” A physician presented by Will’s attorney ad litem testifies
that, while Will is inexperienced in financial matters, Will is otherwise capable of taking care of his basic needs.
Applying the factors that the court is required to consider under the Texas Probate Code, is the court likely to appoint a guardian of Will’s person, his estate, or both? Explain fully.
Texas law provides that any person is capable of petitioning a guardian action on behalf of another individual.
In order for the court to appoint a guardian, there must be clear and convincing evidence that:
(a) the proposed ward is incapacitated;
(b) guardianship would be in the proposed wards best interest; and
(c) guardianship is necessary to protect the ward’s person or property.
Additionally, the petitioner must show by a preponderance of the evidence that:
(i) the court’s venue is proper;
(ii) the person applying for a guardianship is capable of being a guardian;
(iii) the guardianship is not a scheme to allow a minor to attend schools he would otherwise not be able to attend based on his residence; and
(iv) the proposed ward is totally incapable of managing his estate or person.
In satisfying these factors, the court will look at the age of the proposed ward, any evidence relating to his competency, the size of the estate, and any other relevant factors.
07/13 #7:
Will, a never-married, retired sixty-five year old, lives alone in a modest one-bedroom house, where he has lived for the last thirty (30) years. Will and his long-time neighbor and close friend, George, have seen each other virtually every day in that time and have spent countless hours fishing, playing cards, and discussing baseball.
Recently, George has noticed Will becoming more forgetful about things like dates and telephone numbers. Occasionally, Will has appeared momentarily disoriented. George also suspects that Will has missed meals due to his forgetfulness. George became very alarmed when Will told him recently that he had withdrawn all his life savings from the bank, about $50,000, and placed the cash in a suitcase under his bed to “keep it safe.”
Will’s only surviving family member, a distant uncle, recently died and left his entire estate to Will. The uncle’s sizable estate includes real property, securities, and cash valued at $10 million.
George, a partner in a large accounting firm, is concerned that, in light of Will’s recent, erratic behavior, he is not capable of managing his sizable inheritance. George files a guardianship proceeding in probate court and asks that he be appointed as the guardian of Will’s person and Will’s estate.
At the hearing on whether to appoint a guardian, George provides evidence regarding Will’s recent behavior. He also presents a report from a doctor who concludes that Will is beginning to suffer from slight memory loss, lacks an appreciation for the sizable estate he has inherited and is completely unsophisticated in financial matters. In the doctor’s opinion, Will is incapable of managing a sizable estate.
Will testifies on his own behalf and disclaims any physical or mental impairment, and asks the court to dismiss the proceeding. Alternatively, Will specifically requests that his former Banker be appointed as his
guardian and, annoyed with what he considers interference with his personal affairs by George, further requests that it not be George, his “former friend.” A physician presented by Will’s attorney ad litem testifies
that, while Will is inexperienced in financial matters, Will is otherwise capable of taking care of his basic needs.
If the court decides to appoint a guardian, what options may the court consider as to the person or entity appointed to act as guardian, and, in this case, who would the court be most likely to appoint? Explain fully.
The rule in determining which person should serve as guardian to a ward is that the court must select the guardian that is in the ward’s best interest.
When appointing a guardian to an incapacitated adult the priority of appointment is
(1) person named in will of prior guardian, if any;
(2) spouse;
(3) next of kin;
(4) person who would act in the ward’s best interest.
In making that determination, the court must consider the age, experience, skills, talents, and education of the proposed guardian, along with any other relevant evidence such as a preference demonstrated by the proposed ward.
Because only a guardian of the estate will be appointed, the court should only consider evidence relevant to whether the guardian will act in the best interest of the ward’s estate.
The court can use a court created management trust to manage the estate. This would be a good option here because a corporate trustee could be appointed to manage the assets in Will’s best interest.
A guardianship by placing the money in the court’s registry is not possible here because of the large size of the estate. The court is free here to consider what would be in the best interest of the ward.
The court cannot consider someone who is
(1) incapacitated;
(2) incarcerated;
(3) one whose conduct is notoriously bad;
(4) one who has previously been blackballed;
(5) one who has a conflict of interest against the ward’s estate;
(6) someone’s whose lack of education or skill or management make them unable to act as guardian; or
(7) a person who is a sex offender is presumed to be ineligible, but can be rebutted.
If the court decides to appoint a guardian of the person, they will consider the same disqualifying factors as they do for the guardian of the estate, but instead will focus on the ability to care for the person and provide food, clothing, shelter, and make decisions regarding medical, psychological and surgical care.
The court will also consider the same priority of
(1) spouse and then
(2) next of kin, then
(3) best interest of the ward.
02/13 #12:
Frank and Molly, Texas residents, married and had twins, Wade and Willa. During their marriage, they lived in Round Rock, located in Williamson County. When the children were twelve years old, Frank and Molly divorced and Molly moved, with the children, to Austin, located in Travis County, and enrolled in a local community college as a full-time student. Frank remained in Round Rock, where he worked as a director at a very successful financial management firm.
Under the divorce decree, Frank and Molly were joint managing conservators of the children, with equal periods of custody, and Molly had the right to establish the children’s primary residence. However, due to Molly’s full-time class schedule, the children ended up spending two-thirds of the time with Frank and one third with Molly.
Molly’s father, Grant, died leaving a sizable estate, bequeathing $10 million to each of his
grandchildren, Wade and Willa, who were now 13 years old.
Molly immediately called the executor of Grant’s estate and explained that, because Wade and Willa lived with her, the bequeathed sums should be delivered to her attention and that she was prepared to
immediately open up accounts in the names of the children. Molly also faxed the executor a handwritten note from her son, Wade, that stated: ‘‘My mother, Molly, has permission to hold my money.”
Upon learning of the bequests, Frank immediately filed an Application for Guardianship in Williamson County, requesting that the Court establish a single guardianship for both Wade and Willa, and appoint him as the Guardian. In support of his appointment request, Frank cited his vast experience in handling money and financial accounts. Frank also attached a letter handwritten by his daughter, Willa, stating that she wanted Frank to be appointed as her guardian.
Molly filed a response to Frank’s Petition and requested that the Williamson County Court transfer the case to Travis County, where she asserted the children had their legal residence, and further asked that she be
appointed as Guardian for both Wade and Willa because she and Frank “have never been able to agree on what’s best for the children.”
Should Grant’s executor comply with Molly’s telephonic request that the money left to
Wade and Willa in Grant’s will be delivered to her? Explain fully.
When a minor has been bequeathed money, the courts typically require appointment of guardian of their estate so as to manage their money. While parents may be appointed as a guardian of their estate, this is not always the case and it certainly is not automatic. In making this appointment, the court will consider a number of factors, including the grantee’s appointment (if any), whether any of the parties have the knowledge and the capability to handle such funds, and whether it will be in the child’s best interests that this person be appointed to manage their estates. Additionally, an executor of an estate has a fiduciary duty to ensure that funds are properly dispensed with. While the court may consider a request from an older child as to he or she would like to manage their estate, the ultimate decision is based upon the best interests of the child.
02/13 #12:
Frank and Molly, Texas residents, married and had twins, Wade and Willa. During their marriage, they lived in Round Rock, located in Williamson County. When the children were twelve years old, Frank and Molly divorced and Molly moved, with the children, to Austin, located in Travis County, and enrolled in a local community college as a full-time student. Frank remained in Round Rock, where he worked as a director at a very successful financial management firm.
Under the divorce decree, Frank and Molly were joint managing conservators of the children, with equal periods of custody, and Molly had the right to establish the children’s primary residence. However, due to Molly’s full-time class schedule, the children ended up spending two-thirds of the time with Frank and one third with Molly.
Molly’s father, Grant, died leaving a sizable estate, bequeathing $10 million to each of his
grandchildren, Wade and Willa, who were now 13 years old.
Molly immediately called the executor of Grant’s estate and explained that, because Wade and Willa lived with her, the bequeathed sums should be delivered to her attention and that she was prepared to
immediately open up accounts in the names of the children. Molly also faxed the executor a handwritten note from her son, Wade, that stated: ‘‘My mother, Molly, has permission to hold my money.”
Upon learning of the bequests, Frank immediately filed an Application for Guardianship in Williamson County, requesting that the Court establish a single guardianship for both Wade and Willa, and appoint him as the Guardian. In support of his appointment request, Frank cited his vast experience in handling money and financial accounts. Frank also attached a letter handwritten by his daughter, Willa, stating that she wanted Frank to be appointed as her guardian.
Molly filed a response to Frank’s Petition and requested that the Williamson County Court transfer the case to Travis County, where she asserted the children had their legal residence, and further asked that she be
appointed as Guardian for both Wade and Willa because she and Frank “have never been able to agree on what’s best for the children.”
Was Frank’s Application for Guardianship legally sufficient to allow the court to act on it,
and is Williamson County a county of proper venue? Explain fully.
In Texas, when one wishes to be awarded guardianship, they must file an original petition for guardianship with the court, have a citation prepared by the clerk, and have each of the parties served, including the parents of the children and the executor. In the guardianship proceeding of a child, the court of proper venue is located in the county where the child lives. A court may consider a child’s wishes regarding who should be the guardian of the person, but this is irrelevant in appointing a guardian of the estate.
02/13 #12:
Frank and Molly, Texas residents, married and had twins, Wade and Willa. During their marriage, they lived in Round Rock, located in Williamson County. When the children were twelve years old, Frank and Molly divorced and Molly moved, with the children, to Austin, located in Travis County, and enrolled in a local community college as a full-time student. Frank remained in Round Rock, where he worked as a director at a very successful financial management firm.
Under the divorce decree, Frank and Molly were joint managing conservators of the children, with equal periods of custody, and Molly had the right to establish the children’s primary residence. However, due to Molly’s full-time class schedule, the children ended up spending two-thirds of the time with Frank and one third with Molly.
Molly’s father, Grant, died leaving a sizable estate, bequeathing $10 million to each of his
grandchildren, Wade and Willa, who were now 13 years old.
Molly immediately called the executor of Grant’s estate and explained that, because Wade and Willa lived with her, the bequeathed sums should be delivered to her attention and that she was prepared to
immediately open up accounts in the names of the children. Molly also faxed the executor a handwritten note from her son, Wade, that stated: ‘‘My mother, Molly, has permission to hold my money.”
Upon learning of the bequests, Frank immediately filed an Application for Guardianship in Williamson County, requesting that the Court establish a single guardianship for both Wade and Willa, and appoint him as the Guardian. In support of his appointment request, Frank cited his vast experience in handling money and financial accounts. Frank also attached a letter handwritten by his daughter, Willa, stating that she wanted Frank to be appointed as her guardian.
Molly filed a response to Frank’s Petition and requested that the Williamson County Court transfer the case to Travis County, where she asserted the children had their legal residence, and further asked that she be
appointed as Guardian for both Wade and Willa because she and Frank “have never been able to agree on what’s best for the children.”
What standard must the Court follow in determining the appointment of a guardian, and what are the Court’s options under these circumstances? Explain fully.
In Texas, there are many things a court must look at when determining the appointment of a guardian. First it always considers what’s in the best interest of the child. What happens to be in the best interest of the child, who the child resides with, and who manages her property/estate sometimes conflicts. A guardian who cares for a child may not be a proper choice to manage a sizeable estate, and one who may be chosen to manage the estate may not be a proper choice as a caretaker. Normally the Court will look at the parent’s choice of guardian when it makes its determination of who to award guardianship to. The court may also take under advisement a child’s (12 or older) wish of who she chooses to care for her, through a written request to the court. Here, guardianship of the children is not at issue, the only guardianship issue is who should be the guardian of the estates. The court uses a “best interest of the child” standard to determine guardianship.
02/12 #8:
Nigel, a resident of Harris County, Texas, was the lead guitarist for a popular rock band. As his career progressed, he amassed a substantial estate which included assets valued at more than $10,000,000. In
November 2009, Nigel’s tour bus was involved in a collision, and Nigel sustained a head injury. He was hospitalized, and released in early January 2010.
On August 1, 2010, Nigel’s brother, Harold, filed a written application in the Harris County Probate Court to be appointed guardian of Nigel’s person and estate. In support of his application, Harold filed an affidavit from a psychiatrist dated March 1, 201 0, the relevant portion of which stated: “I have personally
examined Nigel, and I have concluded that he has a severe mental condition that impairs his ability to make decisions for himself. His behavior is erratic and irrational. In my opinion, a guardianship would be in his best interests.”
Nigel, through his attorney Lucy, contested the guardianship action. Lucy filed a motion to strike the psychiatrist’s affidavit, arguing that it was legally insufficient. The Court granted Lucy’s motion.
At the hearing on the application to create the guardianship, Harold’s attorney called the psychiatrist who testified as follows:
- Following his head injury, Nigel’s appearance had become unkempt, he sold his mansion, and he moved into a commune with the followers of a religious cult.
- On one occasion, Nigel gave $10,000 as a gift to a vagrant he had met on the street.
- Nigel failed to attend band rehearsals and recording sessions on several occasions.
- Nigel fired his long-time manager and hired his girlfriend, a felon, to manage his career.
- In his opinion, appointment of Harold as Nigel’s guardian would be in Nigel’s best interests.
Lucy did not offer any evidence or testimony at the hearing.
The court dismissed Harold’s application to establish the guardianship.
Did the court err in granting the motion to strike the psychiatrist’s affidavit? Explain
fully?
(1) The court did not err in granting the motion to strike the psychiatrist’s affidavit.
At issue is whether the psychiatrist’s affidavit was timely filed and, if so, whether the affidavit was legally sufficient.
Under the Probate Code, an application to create a guardianship for an incapacitated person cannot be granted unless the applicant presents a written letter or certificate from a physician based on an examination within 120 days before the filing of the application.
Here, the examination took place and the psychiatrist’s affidavit was written five months earlier. Therefore, the psychiatrist’s affidavit was not timely.
Even if the examination and affidavit were within the 120-day period, the affidavit was deficient because it was conclusionary and did not give the detailed information required by the Probate Code.
The physician’s letter or affidavit must describe in detail the nature, degree, and severity of incapacity, including the proposed ward’s ability to handle business and financial matters, operate a motor vehicle, make personal decisions regarding residence, voting and marriage, and to consent to medical, dental, psychological, or psychiatric treatment. The letter or affidavit also must describe the physical and mental conditions underlying a diagnosis of a mental disability, and state whether the proposed ward would benefit from services that would allow him to live in the least restrictive setting.
02/12 #8:
Nigel, a resident of Harris County, Texas, was the lead guitarist for a popular rock band. As his career progressed, he amassed a substantial estate which included assets valued at more than $10,000,000. In
November 2009, Nigel’s tour bus was involved in a collision, and Nigel sustained a head injury. He was hospitalized, and released in early January 2010.
On August 1, 2010, Nigel’s brother, Harold, filed a written application in the Harris County Probate Court to be appointed guardian of Nigel’s person and estate. In support of his application, Harold filed an affidavit from a psychiatrist dated March 1, 201 0, the relevant portion of which stated: “I have personally
examined Nigel, and I have concluded that he has a severe mental condition that impairs his ability to make decisions for himself. His behavior is erratic and irrational. In my opinion, a guardianship would be in his best interests.”
Nigel, through his attorney Lucy, contested the guardianship action. Lucy filed a motion to strike the psychiatrist’s affidavit, arguing that it was legally insufficient. The Court granted Lucy’s motion.
At the hearing on the application to create the guardianship, Harold’s attorney called the psychiatrist who testified as follows:
- Following his head injury, Nigel’s appearance had become unkempt, he sold his mansion, and he moved into a commune with the followers of a religious cult.
- On one occasion, Nigel gave $10,000 as a gift to a vagrant he had met on the street.
- Nigel failed to attend band rehearsals and recording sessions on several occasions.
- Nigel fired his long-time manager and hired his girlfriend, a felon, to manage his career.
- In his opinion, appointment of Harold as Nigel’s guardian would be in Nigel’s best interests.
Lucy did not offer any evidence or testimony at the hearing.
The court dismissed Harold’s application to establish the guardianship.
Did the court err in dismissing Harold’s application to establish a guardianship for
Nigel? Explain fully?
(2) The court did not err in dismissing Harold’s application to establish a guardianship for Nigel.
The issue is whether the psychiatrist’s testimony satisfied the clear and convincing evidence test for establishing incapacity.
Before appointing a guardian, the court must find by clear and convincing evidence that the proposed ward is incapacitated and that appointment of a guardian is in the proposed ward’s best interest. A person is incapacitated if, because of a physical or mental condition, he is substantially unable to provide food, clothing or shelter for himself, care for his physical health, or manage his financial affairs.
The psychiatrist’s testimony that Nigel had become unkempt, sold his mansion, moved into a commune, given $10,000 to a stranger, failed to attend band rehearsals and recording sessions, and hired his felon girlfriend as his manager shows strange and eccentric behavior, but falls far short of establishing by clear and convincing evidence that Nigel is unable to provide food, clothing, or shelter for himself, care for his physical health, or manage his financial affairs. Therefore, the application to establish a guardianship for Nigel was properly dismissed.
02/10 #6:
Harry and Wanda had one child, Amy, and lived in Corpus Christi, Texas during their marriage. They divorced in 1998, and Harry moved to Amarillo. After the divorce, Harry had no further contact with Wanda or Amy.
Wanda married Steve in 2000 and they raised Amy together until 2006, when Wanda was killed in an automobile accident. Shortly after Wanda’s death, Steve filed an application with the Probate Court to be
appointed the permanent guardian of Amy’s person and estate. Harry filed an answer to Steve’s guardianship application and filed his own application to be appointed Amy’s permanent guardian.
During the hearing, the court received the following evidence:
• A letter signed by Wanda declaring that, in the event of her death, she “hereby appoints Steve as Amy’s guardian.”
• A letter signed by Amy, who was now 12 years old, stating that she wanted Steve to be her permanent guardian and did not want to live with Harry.
• Testimony that Steve had been an attentive stepfather to Amy and was the owner of a
successful business.
• Testimony that Harry was a high school dropout, had two felony convictions, was
unemployed, and was burdened by a large amount of debt.
Harry argued that the Texas Probate Code mandates that he be appointed Amy’s guardian because, as Amy’s only surviving parent, there was a presumption that his appointment as Amy’s guardian was in her best interest.
The Court appointed Steve as permanent guardian of Amy’s person and estate.
Did Wanda’s letter have the effect of requiring the court to appoint Steve as Amy’s
guardian? Explain fully.
(1) Wanda’s letter does not have the effect of requiring the court to appoint Steve as Amy’s guardian.
The issue is whether a parent can designate a nonparent as her child’s guardian when the other parent is still alive.
The Probate Code authorizes the last surviving parent (and only the last surviving parent) to make a written designation of guardian of a minor child.
Although Harry has not had any contact with Amy for 12 years, he is still Amy’s parent, and, therefore, Wanda was not Amy’s last surviving parent.
Even if Wanda were Amy’s last surviving parent, her designation of guardian (in proper form—in her handwriting and signed by her) would not require the court to appoint Steve as guardian. While such a written declaration raises a presumption that appointment of the designated person would be in the child’s best interest, it is not conclusive. The court nonetheless must make a finding that the designated person is not disqualified and that his appointment will serve the child’s best interest. As a result, Wanda’s written designation of guardian does not have to be followed by the court.
02/10 #6:
Harry and Wanda had one child, Amy, and lived in Corpus Christi, Texas during their marriage. They divorced in 1998, and Harry moved to Amarillo. After the divorce, Harry had no further contact with Wanda or Amy.
Wanda married Steve in 2000 and they raised Amy together until 2006, when Wanda was killed in an automobile accident. Shortly after Wanda’s death, Steve filed an application with the Probate Court to be
appointed the permanent guardian of Amy’s person and estate. Harry filed an answer to Steve’s guardianship application and filed his own application to be appointed Amy’s permanent guardian.
During the hearing, the court received the following evidence:
• A letter signed by Wanda declaring that, in the event of her death, she “hereby appoints Steve as Amy’s guardian.”
• A letter signed by Amy, who was now 12 years old, stating that she wanted Steve to be her permanent guardian and did not want to live with Harry.
• Testimony that Steve had been an attentive stepfather to Amy and was the owner of a
successful business.
• Testimony that Harry was a high school dropout, had two felony convictions, was
unemployed, and was burdened by a large amount of debt.
Harry argued that the Texas Probate Code mandates that he be appointed Amy’s guardian because, as Amy’s only surviving parent, there was a presumption that his appointment as Amy’s guardian was in her best interest.
The Court appointed Steve as permanent guardian of Amy’s person and estate.
Could the court properly consider Amy’s declaration expressing her desire that Steve be her permanent guardian? Explain fully.
(2) The court could properly consider 12-year-old Amy’s declaration expressing her desire that Steve be appointed her permanent guardian.
At issue is whether a 12-year-old’s choice of guardian should be considered.
Under the Probate Code, a minor at least 12 years of age may choose her guardian in a writing filed with the court. The court will appoint the designated person if the court approves the choice and finds that the appointment is in the child’s best interest.
Here, the court should consider Amy’s declaration.
02/10 #6:
Harry and Wanda had one child, Amy, and lived in Corpus Christi, Texas during their marriage. They divorced in 1998, and Harry moved to Amarillo. After the divorce, Harry had no further contact with Wanda or Amy.
Wanda married Steve in 2000 and they raised Amy together until 2006, when Wanda was killed in an automobile accident. Shortly after Wanda’s death, Steve filed an application with the Probate Court to be
appointed the permanent guardian of Amy’s person and estate. Harry filed an answer to Steve’s guardianship application and filed his own application to be appointed Amy’s permanent guardian.
During the hearing, the court received the following evidence:
• A letter signed by Wanda declaring that, in the event of her death, she “hereby appoints Steve as Amy’s guardian.”
• A letter signed by Amy, who was now 12 years old, stating that she wanted Steve to be her permanent guardian and did not want to live with Harry.
• Testimony that Steve had been an attentive stepfather to Amy and was the owner of a
successful business.
• Testimony that Harry was a high school dropout, had two felony convictions, was
unemployed, and was burdened by a large amount of debt.
Harry argued that the Texas Probate Code mandates that he be appointed Amy’s guardian because, as Amy’s only surviving parent, there was a presumption that his appointment as Amy’s guardian was in her best interest.
The Court appointed Steve as permanent guardian of Amy’s person and estate.
Did the court err in appointing Steve rather than Harry as Amy’s guardian? Explain fully.
(3) The court did not err in appointing Steve rather than Harry as Amy’s guardian.
At issue is whether a court can choose someone other than a surviving legal parent to be a child’s guardian.
Although the Probate Code provides that, upon the death of one parent, the surviving parent is the child’s natural guardian and is eligible to be appointed guardian of the child’s estate, the court properly could have found that Harry is disqualified to serve as guardian of either Amy’s person or her estate.
There are two counts upon which the court could find that Harry was disqualified.
First, a court may not appoint as guardian a person whose conduct is notoriously bad. The court could have found that this applies to Harry, who has had two felony convictions.
Second, a court may not appoint as guardian 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.
The court properly could have applied this test in declining to appoint Harry, who was a high school dropout, has had those two felony convictions, is unemployed, has a large amount of debt, and has not been involved as a parent with Amy for most of her life.
It was appropriate for the court to appoint Steve as guardian of Amy’s person and her estate. Steve has been an attentive stepfather and is a successful businessman, and Amy in her letter stated that she wanted Steve appointed as her guardian.
07/09 #7:
Jane, a widow who lived in San Antonio, died in a car wreck. Jane was survived by her 16-year-old son, Alan, her brother, Mark, and her sister, Beth. Jane’s will provided that, in the event of her death, Mark should be appointed guardian of both the person and the estate of Alan during his minority. Jane’s estate, which she left entirely to Alan, was valued at $2,000,000.
Mark, who was married and working as a wholesale lumber salesman, had a modest but comfortable home and excellent job security. Previously Mark had worked as a trust officer in a local bank and had been
fired for mismanaging a customer’s trust account. Beth was a single woman, who worked as a highly successful securities broker specializing in the management of income-producing investments for her clients. Her work-related travel took her out of town
four or five days a week.
The court appointed Mark as temporary guardian of Alan’s person and estate. Mark immediately loaned himself $50,000 from the estate funds for use in remodeling his home.
When Beth learned about the loan Mark made to himself, she filed an action to have Mark removed as guardian and to have herself appointed guardian of Alan’s person and estate. Beth’s petition also sought to
require Mark to restore to Alan’s estate the $50,000 Mark had borrowed.
Mark opposed Beth’s petition, asserting that the court was bound by the terms of Jane’s will naming Mark as guardian, and Mark cross-petitioned to be permanently appointed guardian of both the person and
estate of Alan. In support of his cross-petition, Mark filed an affidavit, signed by Alan, stating that Alan did not like Beth and wanted to live with Mark and Mark’s wife so he could graduate from high school with his friends.
Mark testified that he borrowed the $50,000 in good faith and that, although his intent was to extensively remodel his home, about half of the loan proceeds were to be spent to build a room and amenities to accommodate Alan’s moving in with him. He claimed that, in any event, he should not be penalized for
having taken the loan because, shortly before her death, Jane had promised to lend him the money.
Can the court lawfully ignore Jane’s wish in her will to have Mark appointed Alan’s
guardian? Explain fully.
(1) The court can lawfully ignore Jane’s wish in her will that Mark be appointed as Alan’s guardian if the court finds that appointment of the designated person would not be in Alan’s best interest.
At issue is whether a court can modify the terms of a trust.
The Probate Code states that the named person “shall” be appointed guardian unless the court finds that the appointment would not serve the child’s best interest.
Jane, as surviving parent, designated Mark as the person to serve as Alan’s guardian. Here, the court could and probably would find that appointment of Mark as guardian of Alan’s estate would not be in Alan’s best interest. For that reason, the court can ignore Jane’s wishes and modify the terms of the trust.
07/09 #7:
Jane, a widow who lived in San Antonio, died in a car wreck. Jane was survived by her 16-year-old son, Alan, her brother, Mark, and her sister, Beth. Jane’s will provided that, in the event of her death, Mark should be appointed guardian of both the person and the estate of Alan during his minority. Jane’s estate, which she left entirely to Alan, was valued at $2,000,000.
Mark, who was married and working as a wholesale lumber salesman, had a modest but comfortable home and excellent job security. Previously Mark had worked as a trust officer in a local bank and had been
fired for mismanaging a customer’s trust account. Beth was a single woman, who worked as a highly successful securities broker specializing in the management of income-producing investments for her clients. Her work-related travel took her out of town
four or five days a week.
The court appointed Mark as temporary guardian of Alan’s person and estate. Mark immediately loaned himself $50,000 from the estate funds for use in remodeling his home.
When Beth learned about the loan Mark made to himself, she filed an action to have Mark removed as guardian and to have herself appointed guardian of Alan’s person and estate. Beth’s petition also sought to
require Mark to restore to Alan’s estate the $50,000 Mark had borrowed.
Mark opposed Beth’s petition, asserting that the court was bound by the terms of Jane’s will naming Mark as guardian, and Mark cross-petitioned to be permanently appointed guardian of both the person and
estate of Alan. In support of his cross-petition, Mark filed an affidavit, signed by Alan, stating that Alan did not like Beth and wanted to live with Mark and Mark’s wife so he could graduate from high school with his friends.
Mark testified that he borrowed the $50,000 in good faith and that, although his intent was to extensively remodel his home, about half of the loan proceeds were to be spent to build a room and amenities to accommodate Alan’s moving in with him. He claimed that, in any event, he should not be penalized for
having taken the loan because, shortly before her death, Jane had promised to lend him the money.
What options are available to the court to resolve the competing requests for appointment as guardian, and how will the court most likely rule? Explain fully.
(2) The options available to the court include:
(i) appointing Mark as guardian of both Alan’s person and his estate;
(ii) appointing Beth as guardian of both Alan’s person and his estate; and
(iii) appointing Mark as guardian of Alan’s person and Beth as guardian of Alan’s estate.
The court would most likely rule in favor of option (iii).
At issue are the options a court has in modifying a trust.
Although Jane’s will designated Mark to be the guardian of the person and estate of Alan, the court would most likely conclude that appointing Mark as guardian of Alan’s estate would not be in Alan’s best interest, and that Beth should be appointed as guardian of Alan’s estate. That Mark had been fired by a bank for mismanaging a customer’s trust account would, at the least, raise a red flag. Moreover, Mark’s improperly borrowing $50,000 while serving as temporary guardian eliminates any question as to the inappropriateness of appointing Mark. Such conduct, involving misapplication of estate funds, would warrant removal without notice or hearing, and also should warrant a decision not to appoint Mark as permanent guardian in the first place. Beth, on the other hand, is a highly successful broker and has experience in managing income-producing assets, making her a highly suitable appointee to manage a $2 million guardianship estate.
On the other hand, the court would most likely conclude that appointing Mark as guardian of Alan’s person would be in Alan’s best interest. That would give effect to this component of the designation of guardian in Jane’s will. Moreover, 16-year-old Alan has expressed in an affidavit his desire to live with Mark and Mark’s wife.
A child age 12 or older can choose his guardian by a writing filed with the court (subject to the court’s finding that the choice is in the child’s best interest).
Alan’s reason for wanting to live with Mark is a persuasive one: He wants to graduate from high school with his friends. Mark’s failure as a trust officer and his improperly borrowing estate funds do not mean that the home environment would be inappropriate. In contrast, Beth would not be a suitable choice as guardian of Alan’s person because, due to her work-related travel, she would be out of town four or five days a week—leaving a 16-year-old boy at home alone. As a result, the court would likely modify the terms of the trust only to make Beth the guardian of Alan’s estate.
07/09 #7:
Jane, a widow who lived in San Antonio, died in a car wreck. Jane was survived by her 16-year-old son, Alan, her brother, Mark, and her sister, Beth. Jane’s will provided that, in the event of her death, Mark should be appointed guardian of both the person and the estate of Alan during his minority. Jane’s estate, which she left entirely to Alan, was valued at $2,000,000.
Mark, who was married and working as a wholesale lumber salesman, had a modest but comfortable home and excellent job security. Previously Mark had worked as a trust officer in a local bank and had been
fired for mismanaging a customer’s trust account. Beth was a single woman, who worked as a highly successful securities broker specializing in the management of income-producing investments for her clients. Her work-related travel took her out of town
four or five days a week.
The court appointed Mark as temporary guardian of Alan’s person and estate. Mark immediately loaned himself $50,000 from the estate funds for use in remodeling his home.
When Beth learned about the loan Mark made to himself, she filed an action to have Mark removed as guardian and to have herself appointed guardian of Alan’s person and estate. Beth’s petition also sought to
require Mark to restore to Alan’s estate the $50,000 Mark had borrowed.
Mark opposed Beth’s petition, asserting that the court was bound by the terms of Jane’s will naming Mark as guardian, and Mark cross-petitioned to be permanently appointed guardian of both the person and
estate of Alan. In support of his cross-petition, Mark filed an affidavit, signed by Alan, stating that Alan did not like Beth and wanted to live with Mark and Mark’s wife so he could graduate from high school with his friends.
Mark testified that he borrowed the $50,000 in good faith and that, although his intent was to extensively remodel his home, about half of the loan proceeds were to be spent to build a room and amenities to accommodate Alan’s moving in with him. He claimed that, in any event, he should not be penalized for
having taken the loan because, shortly before her death, Jane had promised to lend him the money.
May the court order Mark to restore the entire $50,000 to Alan’s estate? Explain fully.
(3) The court can, and should, order Mark to restore the entire $50,000 to Alan’s estate.
At issue is whether a temporary guardian can engage in self-dealing.
A temporary guardian has only those powers explicitly granted in the order of appointment, and assuredly the order would not have authorized Mark to borrow money from the guardianship estate, a self-dealing transaction.
Even if it were true that Jane allegedly told Mark that he could borrow funds from her, this would have no bearing on the outcome of the case. Even if Mark were serving as a permanent guardian, he could not take such an action without prior court approval, and the court would not authorize such a transaction as a prudent “investment” or otherwise. Mark’s action constituted embezzlement, and Mark should be ordered to return the money with interest.
