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Texas Bar Exam: Essays > Guardianships > Flashcards

Flashcards in Guardianships Deck (132)
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1

What is a guardianship? When is it needed?

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.

2

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

True.

3

What is a guardian ad litem?

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.

4

What is an "attorney ad litem?"

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.

5

What is the "guardianship estate?"

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.

6

Who is a guardian?

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.

7

What classifies someone as being incapacitated?

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.

8

Who are "interested persons?"

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.

9

What is the personal representative in a guardianship?

This is the guardian or successor guardian.

10

Who is the ward? What is a proposed ward?

The proposed ward is the person ALLEGED to be incapacitated.

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

11

Explain jurisdiction in guardianship cases.

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.

12

Where is venue proper in a guardianship proceeding?

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.

13

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

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.

14

What are the special venue rules for proceedings concerning minors?

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.

15

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

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.

16

What if there are more than one proper venues?

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.

17

Where is a guardianship proceeding filed?

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

18

What citation and notice is due in a guardianship proceeding?

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.

19

How is an attorney ad litem appointed?

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.

20

What is the attorney ad litem entitled to?

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.

21

How is one eligible to be an attorney ad litem?

A person must have the CERTIFICATION required by the TEC.

22

When does the term of an attorney ad litem end?

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.

23

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

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

They are entitled to receive REASONABLE COMPENSATION.

24

Who has standing to commence a guardianship proceeding?

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.

25

Who is disqualified to serve as a guardian?

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.

26

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

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.

27

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

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.

28

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

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.

29

Who is appointed guardian if the minor is an orphan?

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.

30

How are guardians for non-minors selected?

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.