Right to physical possession of the ward.

Duty of Control and care,

provide clothing, food, medical care & shelter

power to consent to medical treatment

Bond  required but may be waived.

Right & Duty to manage the ward's property

Right to enforce ward's obligation

Right to bring or defend suits on ward's behalf

Bond is required to be a guardian of the estate

A parent may by will or other written declaration appoint a guardian of their minor children or incapacitated adult children.

The named person MUST be appointed UNLESS the court finds them to be disqualified, dead, wouldn't serve or not in the ward's best interest.

minors:  the county where parent(s) reside

adults: county where ward resides or where his princiapl estate is located

ANY PERSON has standing to commence the proceeding

&

can recover attorney's fees if the court finds that the proceeding was brought in good faith

Who is NOTeligible to be appointed guardian?

1. incapacitated persons
2. conflict of interest unless court determines no conflict or a guardian ad litem is appointed
3. inexperience, lack of ed, other reason that  makes them incapable of prudently managing the estate
4. person w/ notoriously bad conduct
5. disqualified by designation
6. convicted of a sexual offense (preseumed not in the best interest)

A guardian must qualify by taking an oath & posting fiduciary bond w/i 20 days.

Publish notice of administration in newspaper w/i 1 mo.

File inventory of the estate w/i 30 days.

File application for monthly allowance w/i 30 days.

File application to develop investment plan w/i 180 days

When he fails:

to post bond in 20 days,

moves from TX or is absent for more than 3 mos or cannot be served w/ notcies, has cruelly treated the ward, failed to maintain or educate the ward, or misapplied or embezzeled assets.

CLEAR AND CONVINCING is the burden of proof

if there are grounds to believe guardian acted inappropriately,

guilty of gross misconduct or mismanagement,

fails to comply with court order or file annual report,

or if he becomes incapcitated or for some other reason is incapable of performing his duties

• retain property w/ no duty to diversify for 1yr
• make investment decisions consistent w/ crt approved plan
• expend amounts in excess of monthly allowance when prior approval is not possible ofr convenient of there is clear & convincing evidence that they are reasonable and proper
• insure property and pay taxes as necessary to maintain it

Guardian of the person: 

entitled to 5% pf ward's gross income, not inclduing government income

Guardian of the estate:

entitled to reasonable compensation (5% income + 5% paid out)

$100k or less can be paid into the registry of the court to avoid a gaurdianship but it requires the ward to petition the court for each distribution.

Also, if there is a guardian, a court created management trust under §867 of the probate code for a minor settlement.  If more than $50k, a bank must be trustee.  Trust continues up to age 25.

If no guardian, an Art. 142 will accomplish the same result but a bank must always be trustee

Yes.  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 choiced and finds that the appointment is in the child's best interest.

Can a letter signed by a mother stating her current husband (step-father) is to be the guardian of of her minor child although her biological father is still alive be binding on the court?

ISSUE:

Whether a parent can designate a nonparent as her child's guardian when the other parent is still alive?

The letter doe snot have effect of requiring the court to appoint the nonparent.  The Probate Code authorizes the last surviving parent to make a written designation of guardian of a minor child.

Furthermore, even if the parent was the last surviving, the written declaration would not require the court to appoint the nonparent. While such a declaration raises a presumption that appointment of the desginated person would be in teh child's best interest, it is not conclusive.  THe court must make a determination that the person is not disqualified and in the child's best interest.

What threshold facts must an applicant prove to establish the necessity for a guardianship & by what evidentiary standard must they be proven?

At issue are the requirements to be appointed as guardian of the person and/or the estate.

The applicant must show by:

Clear and convincing evidence: 

• person is incapcitated
• it's in person's best interest to have a guardian
• person's rights & property will be protected

Preoponderance of the evidence:

• either totally w/o capacity to care for himself and  manage his property or lacks the capcity to do some but not all of the tasks necessary to care for himself and his property
• the applicant is eligible to be appointed guardian
• and naming the applicant as the guardian is in the person's best interest

Is a court bound by guardianship provided in wills?

Who is the court likely to appoint guardian over:

1.  the person

2.  the estate?

At issue are the factors a court looks to in determining the best guardian.

Person:  Ability of the person to care and provide a consistent routine as close as possible, the desire of the ward,

Estate:  depending og amount of the estate, expertise in managment of money and investments, desire to serve, willingness to serve uncompensated

1.  grandparent

2. next of kin in nearest degree

Who is eligible to be guardian of incapcitated adult?

1.  person named by last surviving parent in will or other declaration

2. Person named in written and witned Designation of Guardian Before Need Arises

3.  in the absence of any writing:

spouse,

next of kin in bearest degree