Summary: (9) Tx Trusts And Guardianships

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• Guardianship

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• Guardian of the Person: Rights and Duties (4)

  1. To take charge of the ward and establish the ward's legal domicile;
  2. To provide care, supervision, and protection;
  3. To provide clothing, food, medical care, and shelter; AND
  4. to consent to the ward's medical, psychiatric, and surgical treatment. 

  
  
  NOT: The right + duty to possess and manage the ward's property. (CF, guardian of the estate)

• Guardian of the Estate: Rights and Duties (5)

  1. To possess and manage the ward's property; 
  2. To enforce all obligations in favor of the ward; 
  3. To bring and defend suits by or against the ward;
  4. To take care of and manage the ward's estate as a prudent person would manage his own property; AND
  5. To account for all rents, profits, and revenues earned by the state. 

• When can a court remove a guardian (after proper notice and a hearing): 3 Circumstances

  
  A court may remove a guardian after proper notice and hearing if: 
  

  • (A) Guardian is sentenced to the penitentiary; 
    
  • (B) Guardian is guilty of gross misconduct or mismanagement; OR 
  • (C) Guardian fails to obey a court order.
    

• Hearing to Appoint a Guardian: General Procedure

  • The proposed ward, or any other party in a contested guardianship proceeding, is entitled to a jury trial on request, but not automatically. 
  • The court may close the hearing to the public if the proposed ward or his counsel requests. 
  • Generally, a proposed ward must be present at the hearing to appoint a guardian. However, their appearance is excused if the court determines that a personal appearance is not necessary.
    

• When are joint guardians permitted?

  • Generally, only one person may be appointed as guardian of the person or guardian of the estate. Typically, the same person is named as guardian of the person and of the estate. 
  • However, joint guardians are permitted if they (a) are spouses, (b) are joint managing conservators of the child, (c) were appointed joint guardians in another state, or (d) are the parents of an adult incapacitated child even though not married to each other. 

• When is a person disqualified from being appointed as guardian?

  A person is disqualified from being appointed as guardian for several reasons, including
  

  •  (a) lack of capacity, i.e., being a minor or an incapacitated adult; and/or 
  •  (b) if because of inexperience, lack of education, or other good reason, they are incapable of properly managing the ward or estate. 

  
  
  While inexperience or lack of education is grounds for disqualification, the rule does not necessarily require a guardian be knowledgeable in probate law, be an expert in business management, or be experienced in investing money. 

• An appellate court may reverse the probate court's appointment of a guardian for a person other than a minor only where: 

  An appellate court may reverse the probate court's appointment of a guardian for a person other than a minor only where the appellate court finds the probate court abused its discretion.
  
  The probate court appoints a guardian for a person other than a minor according to the incapacitated person's best interests. In making that determination, the probate court has broad discretion and an appointment will be upheld unless there is a showing the probate court abused its discretion.

• When can a minor age 12 or older choose his own guardian?

  A minor 12 years of age or older may choose the guardian by a writing filed with the court if the court finds that the selection is in the minor’s best interest. Grandparents, siblings, aunts, and other kin do not automatically trump a child’s selection of guardian.

• Is appointment of a guardian of the person mandatory where a minor has at least one living parent?

  No. Because parents are the natural guardians of their minor children, a guardian of the person does not have to be appointed if either of the minor’s parents is living. However, a parent, as guardian of the child’s person, has no power to manage the child’s estate (if the child owns property), and one of the parents will need to be appointed guardian of the estate.

• When do letters of guardian ship expire?

  Letters of guardianship expire one year and four months after the date of issuance unless renewed. This rule is tied to the requirement that there be an annual determination of whether there is a continued necessity for the guardianship.