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Guardianship

19 important questions on Guardianship

Bond Requirement for Individuals Appointed Guardian of the Person?

An individual named as guardian of the person must give bond to secure the faithful performance of her duties.
The only exception to the bond requirement is: if a surviving parent's will or written declaration appoints a guardian of the person of her minor children and provides that the guardian shall serve without bond.
This exception only applies to guardian of the person; an individual named as guardian of the estate must give bond and the requirement cannot be waived by the surviving parent's will or written declaration.

When may a court enter an order authorizing a guardian of the estate to make gifts?

The court may enter an order authorizing a guardian of the estate to make gifts for two purposes: (1) to qualify the ward for governmental benefits, and (2) to minimize income, estate, or other taxes of the ward's estate.
The court can enter such an order only if it is shown that the ward will probably remain incapacitated for life.

Where the beneficiary of a court created management trust is a minor, when does the trust terminate?

If the beneficiary of a court created management trust is a minor, the trust terminates:

(A) on the date provided by court order, which may not be later than the beneficiary’s 25th birthday; or
(B) on the beneficiary’s death. A showing of best interest or a compelling reason is not required.

When the beneficiary of a court created management trust is an incapacitated or physically disable adult, when does the trust terminate?

if the beneficiary is an incapacitated or physically disabled adult, the trust terminates:

(A) when the court determines that continuing the trust is no longer in the beneficiary's best interests; or
(B) on the beneficiary's death.

Findings Required Before Guardian Can be Appointed: 4 Findings that Require Clear + Convincing Evidence

Before appointing a guardian, a court must make four findings by clear and convincing evidence:

(1) The proposed ward is incapacitated;
(2) it is in the proposed ward’s best interests to have a guardian appointed;
(3) the rights of the proposed ward and his property will be protected by appointment of a guardian; and
(4) alternatives to guardianship and available support and services were considered and were determined to not be feasible.

Determination of incapacity for an adult: Required evidence

A determination of incapacity of an adult must be evidence by recurring acts or occurrences within the preceding six-month period, and not by isolated instances of negligence or bad judgment.

Court-Created Management Trust: Defined

A trust may be created in guardianship if the court finds that the creation of the trust is in the ward’s best interests. If an alleged incapacitated person does not have a guardian of the estate, a trust may be created on the application of an attorney ad litem, guardian ad litem, or other person interested in the incapacitated person’s welfare. A trust may also be created for a person with only a physical disability. Under this arrangement, the estate of the person is administered under the more flexible rules that govern trusts (the Trust Code).

When a Court-Created Management Trust Might be Used: 2 Primary Situations

Court-created management trusts are used primarily in 2 situations:

(1) Minor ward has a substantial estate--e.g., where a minor has a very large estate that, absent a trust, will be turned over to the ward at age 18. A court-created management trust can continue until the ward attains age 25.
(2) Estate requires professional management--e.g., where the estate of an incapacitated person involves such a large sum of money or such distinctive assets that a corporate fiduciary's investment expertise is warranted.

Designation of a Guardian before the Need Arises: Defined

An individual concerned about the possibility of becoming disabled may designate the person who is to serve as guardian of his person or his estate if he later becomes incapacitated.

Designation of Guardian before Need Arises: Formal Requirements

The declaration must be executed with the same formalities required for a will. It must be (1) signed by the individual; and (2) either: (a) written wholly in the individual’s handwriting, or (b) attested to by two witnesses age 14 or older. If the declaration is not (2)(a) wholly written in the individual’s handwriting, it must be signed by another person at the individual’s direction and in his presence. The declaration may have a self-proving affidavit attached.

Designation of Guardian Before the Need Arises: Presumptions

The statute raises a presumption that the appointment of the person named in the declaration is in the ward’s best interests, and the person has priority over all other persons who might otherwise be eligible for appointment. However, the presumption is not conclusive, and the court may decline to appoint the named person if, e.g., (a) he is asserting a claim against the proposed ward’s estate or (b) the court determines for other reasons that appointment of the person is not in the ward’s best interests.

Designation of Guardian Before the Need Arises: Disqualification of Named Persons

The declaration may disqualify a named person from serving as guardian, and the court amy not under any circumstances appoint that person as guardian.

Guardianship for an adult individual: General Standard

A court will appoint a guardian for an adult individual if there is clear and convincing evidence that the person is incapacitated.

Appointing a Guardian of the Person: Standard.

A guardian of the person will be appointed if it is shown by clearing + convincing evidence that the individual, because of physical or mental condition, is substantially unable (a) to provide food, clothing or shelter for himself, or (b) to care for his own physical health.

Appointing a Guardian of the Estate: Standard.

A guardian of the estate will be appointed if it is shown by clearing + convincing evidence hat the individual is substantially unable to manage his financial affairs.

TX Policy: Limited Guardianships Encouraged

As a matter of policy, the Texas Estates Code encourages the creation of a limited guardianship where an incapacitated person is capable of doing some but not all of the tasks necessary to care for himself or manage his financial affairs.

Who May be Appointed Guardian for a Person Other than a Minor: General Test--Best Interests of Ward

The primary factor in determining who should be appointed guardian is the proposed ward's best interests. At the hearing on the appointment of a guardian, the court must inquire into the qualifications, abilities, and capabilities of the person seeking appointment, and must give due consideration to any preference indicated by the proposed ward.

Proceedings for Determining Incapacity and Appointment of Guardian: Safeguards to protect proposed Ward's rights

1) Attorney Ad Litem. An attorney ad litem must be appointment to represent the proposed ward's interests
2) Court investigator. A court investigator investigates to determine whether a less restrictive alternative to a full guardianship is appropriate.
3) Physician's Report. A physician's report must describe the nature, degree, and severity of the incapacity.

Standing to Commence/Contest Guardianship Proceeding

Any person (relative, friend, etc) has the right to commence or contest a guardianship proceeding.
Alternatively, if a relative/friend is concerned that a person is incapable of caring for himself/his property, they can submit an "information letter" to the probate court, outlining the circumstances that might warrant a guardianship.
If a court has probable cause to believe that. person domiciled or found in the county is incapacitated and does not have a guardian, the court must appoint a guardian ad litem or court investigator.

The question on the page originate from the summary of the following study material:

(9) TX Trusts and Guardianships

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Guardianship

19 important questions on Guardianship

Bond Requirement for Individuals Appointed Guardian of the Person?

When may a court enter an order authorizing a guardian of the estate to make gifts?

Where the beneficiary of a court created management trust is a minor, when does the trust terminate?

When the beneficiary of a court created management trust is an incapacitated or physically disable adult, when does the trust terminate?

Findings Required Before Guardian Can be Appointed: 4 Findings that Require Clear + Convincing Evidence

Determination of incapacity for an adult: Required evidence

Court-Created Management Trust: Defined

When a Court-Created Management Trust Might be Used: 2 Primary Situations

Designation of a Guardian before the Need Arises: Defined

Designation of Guardian before Need Arises: Formal Requirements

Designation of Guardian Before the Need Arises: Presumptions

Designation of Guardian Before the Need Arises: Disqualification of Named Persons

Guardianship for an adult individual: General Standard

Appointing a Guardian of the Person: Standard.

Appointing a Guardian of the Estate: Standard.

TX Policy: Limited Guardianships Encouraged

Who May be Appointed Guardian for a Person Other than a Minor: General Test--Best Interests of Ward

Proceedings for Determining Incapacity and Appointment of Guardian: Safeguards to protect proposed Ward's rights

Standing to Commence/Contest Guardianship Proceeding

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