Guardian Ships

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Guardianships I. Introduction A. Guardianship Code – gives procedures for guardians for minors or incapacitates B. Overview of Guardianship Administration 1. Guardian – person appointed by probate court charged with care and management of person or property or both of a minor, called a ward; two roles: a) Guardian of the person b) Guardian of the Estate 2. Minor – person under 18 who has never been married and who has not had the disability of minority removed by judicial process 3. Incapacitate
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  Guardianships   I.   Introduction  A.   Guardianship Code    –  gives procedures for guardians for minors or incapacitatesB.   Overview of Guardianship Administration  1.   Guardian  –  person appointed by probate court charged with care andmanagement of person or property or both of a minor, called a ward  ; tworoles:a)   Guardian of the personb)   Guardian of the Estate2.   Minor  –  person under 18 who has never been married and who has not had thedisability of minority removed by judicial process3.   Incapacitated Adult  –  one who substantially unable to provide food, clothing,shelter for himself, to care for physical health, or manage financial affairs4.   Limited Guardianships Encouraged a)   Guardians may have full or limited authority   b)   Indicated by person’s actual mental or physical limitations   c)   Only given as necessary to promote/protect person’s well -being   d)   If person is not a minor, age may not be the sole factor in appointing aguardian   C.   Guardian of the Person 1.   Right  –  to take charge of the ward and establish legal domicile   2.   Duty  –  to provide care, supervision, and protection as well as clothing, food,medical care, and shelter   3.   Guardian may consent to treatment for ward   D.   Guardian of the Estate 1.   Right  –  to possess and man age the ward’s property, enforce obligations for the ward, and bring/defend suits by or against ward   2.   Duty  –    to take care of and manage the ward’s estate as a prudent person would   3.   Must account for all rents, profits, and revenues earned by the estate   E.   Guardianship of the Estate Compared to Other Fiduciary Officers 1.   Compared to Trust a)   Similar to trust administration   b)   Guardianship is subject to strict court supervision   c)   Guardians must obtain prior approval for all but extremely routinetransactions   d)   Trustee’s powers are broad; guardian’s are limited to those authorized by statute   e)   Guardian must  give bond and must  file annual accountings   2.   Compared to Estate Administration a)   Generally similar  –  both involved court-supervised administrations   b)   Statutes that prescribe powers that can be exercised are almostidentical; laws and rules for estates of decedents are very similar   c)   Major difference  –  estate administration is short term; guardianship islong term    d)   Guardian is more likely to be asked to make investment decisions andperiodic distributions  –  estate administrator usually just holds on handuntil distribution for when estate is closed   e)   So if you can’t remember rule for guardian –  give rule for dependentadministrator  II.   Jurisdiction and Venue A.   Proceeding in Rem    –    guardianship administration of a ward’s estate is a proceeding in rem  –  to determine title to or interests in specific property   B.   Jurisdiction    –  nearly identical to administration of estates   1.   County court has jurisdiction for  all matters appertaining to or incident to a guardianship estate   2.   If county has statutory probate court  –  has jurisdiction over any matterappurtenant to guardianship estate and any action in which guardian is a party   3.   If statutory county court at law  –  all guardianships are filed and heard in thatcourt or the constitutional county court   4.   Smaller counties that have constitutional county courts only  –  the county anddistrict courts have concurrent jurisdiction   5.   Statutory probate court may transfer a cause of action incident to guardianshipestate from a district or county court to the statutory probate court   C.   Venue for Appointment of Guardian 1.   Guardianship of Minor  –  Where Parents Reside a)   May be brought in the county where both parents resideb)   If not in the same county  –  county of resident of parent who is solemanaging conservator or joint with greater physical possessionc)   If only one parent is living and has custody  –  where that parent residesd)   If both parents are dead and minor was in custody of deceased parent  –   where the last surviving parent resided2.   Guardianship of Incapacitated Adult    –  venue lies where either:a)   County of residence of the proposed ward, orb)   County in which principal estate of proposed ward is located3.   Appointment of Guardian by Will    –  county where will is probated or appointee’ s residence   4.   Venue in more than one county    –  jurisdiction lies in the first filed   5.   Transfer of Guardianship    –  court may transfer when movant providessufficient reasons for a transfer  III.   Who May Be Appointed Guardian A.   Guardian for Minor 1.   Parent is Living a)   Parents are natural guardians of minor children  –  guardian of the  person does not have to be appointed if either of minor’s parents is living   b)   Parent is automatically guardian of person; does not automaticallyhave guardianship of estate   c)   One parent is entitled to be appointed guardian of estate   d)   If parents have two or more minor children  –  separate guardianship of estate must be made for each child    e)   One parent can be guardian of all children   f)   If parents disagree  –    court makes appointment on parents’ qualifications   g)   If one parent is dead  –  survivor is natural guardian of person andentitled to be appointed guardian of estate   2.   Minor is Orphaned a)   Last surviving parent may by will or written declaration appoint aguardian for minor children   b)   Court will generally honor appointment   c)   Written declaration must:   (1)   Be signed by the parent, or   (2)   Either written wholly in his handwriting or  attested to by twowitnesses age 14 or older   d)   If last surviving parent did not appoint a guardian  –    child’s grandparent is entitled to be guardian of both person and estate   e)   If more than one grandparent  –  one must be appointed, taking intoaccount best interests of minor   f)   If no grandparents  –  nearest kin   g)   If no relative is eligible or interested  –  court appoints a qualifiedperson as guardian   h)   Minor 12 years or older may choose guardian   B.   Guardians for Non-Minors 1.   Court appoints guardian according to best circumstances and interests of ward   2.   Probate court has broad discretion   3.   Ward’s spouse is entitled to be guardian in preference of anyone else   4.   If ward is not married or spouse is disqualified, nearest kin is entitled   5.   If no relatives  –  court appoints eligible person bets qualified   6.   Court must make reasonable effort to consider person’s preference to guardian   7.   Last surviving parent of incapacitated adult may be appointed a guardian inthe manner described for minor children   C.   Designation of Guardian Before Need Arises  –  person may choose a guardianbeforehand by written and witnessed declaration   1.   Court does not have to pick that person, but will be presumed as in ward ’s best interests   2.   May also declare who you don’t  want  –    then court can’t appoint them   D.   When Joint Guardians Permitted   1.   As a rule  –  only one guardian   2.   Joint guardians allowed if:   a)   Husband and wife   b)   Joint managing conservators of child   c)   Appointed joint guardians in another state, or   d)   Parents of an adult incapacitated child even if unmarried   3.   Typically  –  same person is both kinds of guardians, but may split   E.   Nonresident Guardian    –  sometimes necessary; nonresident can be issued letters of guardianship upon filing POA appointing resident agent to accept service of process  
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