Guardianship - Texas Bar Exam 2010

Front 1

Guardian of the Person

Back 1

Has right to take charge of the ward; duty to provide care, supervision and protection for the ward; duty to provide clothing, food, medical care and shelter; and power to consent to medical and psychiatric treatment

Front 2

Guardian of the Estate

Back 2

Has right and duty to manage ward's property, enforce ward's obligations and bring or defend suits by or against the ward

Front 3

Ward

Back 3

Individual from whom a guardian is appointed (minor or incapacitated adult)

Front 4

Appointment of Guardians - Minors

Back 4

If ward is minor, examine whether one of ward's parents is living; since parents are the natural guardians of their minor children, a guardian of the person doesn't have to be appointed if either of the minor's parents is living

If minor is over age 12, child can choose guardian in writing filed with court (unless court vetoes child's choice as not in child's best interest)

Front 5

Appointment of Guardians - Minors and Orphaned

Back 5

-If ward is minor and orphaned, last surviving parent may, by will or written declaration, appoint a guardian of the parent's minor children to serve after the parent's death
-If last surviving parent didn't appoint guardian, child's grandparent is entitled to guardianship of both the person and the estate of the child
-If there is more than 1 grandparent, one will be appointed, taking into account minor's best interests
-If child has no living grandparents, nearest of kin will be appointed
-If no relative is eligible to be appointed, court appoints a qualified person as guardian

Front 6

Appointment of Guardians - Not a Minor

Back 6

If ward isn't a minor, court appoints guardian based on the best interests of the ward
-If ward is married, ward's spouse is entitled to be appointed guardian in preference to any other person
-If ward isn't married or spouse disqualified, nearest of kin to ward entitled to guardianship
-If there are 2 or more persons in same degree of kinship, court appoints one of them under best interest of the ward test

Front 7

Guardian - General Requirements

Back 7

Court may not appoint as guardian a person who, because of inexperience, lack of education, or other reason, is incapable of properly and prudently managing and controlling the ward or the ward's estate

Front 8

Limited Guardianship

Back 8

Because adult for whom guardian is appointed loses all legal and civil rights and powers that are granted to his guardian, Probate Code urges the court to order limited guardianship whenever possible - where person lacks capacity to do some, but not all, of the tasks necessary to care for himself and manage his property; order appointing a guardian must specify:
1. powers, duties, and limitations of guardian
2. amount of ward's funds that can be expended for the ward's care without court approval

If ward regains some cognitive skills, ward or interested person can petition to have guardianship modified or terminated

Front 9

Incapacity Proceeding

Back 9

In an incapacity proceeding, safeguards are imposed to insure that the proposed ward's rights are fully protected:
1. Court must appoint attorney ad litem to represent the proposed ward
2. Court has discretion to appoint guardian ad litem on behalf of proposed ward
3. Court must appoint a court investigator
4. Proposed ward must be present at trial
5. Proposed ward or attorney ad litem may request jury trial

Clear and Convincing Evidence = evidentiary standard regarding whether propsoed ward is incapacitated and guardian appointed

All other findings require a preponderance of the evidence: court has venue, person to be appointed guardian is eligible, etc

Front 10

Letters of Guardianship

Back 10

If guardian is appointed, letters of guardianship are valid for 16 months

Rule reflects policy of annual review of guardianship as to whether it should be modified or terminated

Front 11

Actions Guardian Must Take within 60 Days after Appointment

Back 11

1. Must qualify by taking oath and posting fiduciary bond (unless waived) within 20 days
2. Must publish notice of administration in newspaper of general circulation within 1 month
3. Must file inventory of estate within 30 days
4. Must file application for monthly allowance to be expended on ward's behalf within 30 days

Front 12

Removal of Guardian Ex Parte

Back 12

Court ma remove guardian ex parte (no notice or hearing) if guardian:
1. fails to qualify by giving oath and bond within 20 days or fails to file inventory within 30 days
2. moves from Texas, is absent from state for more than 3 months; cannot be served with notices because whereabouts are unknown
3. has neglected or cruelly treated ward, or has failed to maintain or educate ward, or has misapplied or embezzled assets, or has removed assets from Texas, if these are shown by: clear and convincing evidence

Front 13

Removal of Guardian after Notice and Hearing

Back 13

Court may remove guardian only after notice and hearing if:
1. there are grounds to believe [but not clear and convincing evidence] that she has neglected or cruelly treated ward, has filed to educate or maintain ward, or has embezzled assets, or has removed assets from Texas
2. she is guilty of gross misconduct or mismanagement
3. she fails to comply with court order; fails to file accountings (or as guardian of the person fails to file her report), both of which are required: annually
4. she becomes incapacitated, is sentenced to penitentiary, or for some other reason is incapable of properly performing the duties of guardian

Front 14

Things Guardian Can Do without Court Order or Prior Court Approval

Back 14

1. 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 deprecation or loss for a period of 1 year
2. Can make investments in assets on the statutorily approved legal list (or investments part of plan approved by court)
3. When obtaining prior court approval is not convenient or possible, 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
3. can insure property, pay taxes, court costs, bond premiums; vote stocks; release lien on payment of debt

Front 15

Things Guardian Needs Court Approval To Do

Back 15

Anything not on last note card

Sale of real or personal property of the estate (which always requires court approval) can be made only for purpose of:
1. pay claims and expenses
2. maintenance of the ward
3. unproductive property

Front 16

Reinstatement after Removal

Back 16

Guardian can file application to determine whether he should be reinstated as guardian (but only if he was removed without notice or hearing and on the grounds that he mistreated ward or was guilty of misapplying estate funds or removing assets from the state)

Application must be filed no later than 10 days after order of removal is entered