Probate Court Investigations

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Guardianships
Frequently Asked Questions

STIPULATION:

          This information is issued to inform and not advise.  This is only general and basic information and exceptions may exist.  You should seek legal advice from an attorney of your choice to advise you in your particular information.

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What is a guardianship and how do they work? 

A guardianship is a court-supervised administration for a minor or for an incapacitated person.  A person -- called the guardian -- is appointed by a court to care for the person and/or property of the minor or incapacitated person -- called the ward.  In some other states, guardianships are called conservatorships, but in Texas they are called guardianships.

What types of guardianships are there? 

There are two types of guardians and guardianships.  A guardian appointed to take care of the physical well-being of a ward is called a guardian of the person, while a guardian appointed to take care of the ward's property is called a guardian of the estate.  In some cases, only one type of guardian is appointed for a particular ward.  In many cases, both a guardian of the person and a guardian of the estate are appointed for a ward.  (Often, but not always, they are the same person.)

What are the definitions of "minor" and "incapacitated person?" 

A minor is a person younger than 18 years who has never been married or who has not had his or her disabilities of minority removed by judicial action.  A minor is considered an incapacitated person.  An adult who, because of physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs is considered an incapacitated person.  The definition of incapacitated person also includes a person who must have a guardian appointed to receive funds due the person from any governmental source.

I think I know someone who meets the definition of an incapacitated person.  What must I do to get a guardian appointed?

Texas law has very specific procedures in place for proving the need for a guardianship and getting a guardian appointed.  These procedures are too complicated for a lay person to undertake without a lawyer's help, and most courts will not entertain guardianship applications filed by non-lawyers.  To get a guardianship, incapacity must be proven by clear and convincing evidence -- a very high standard.  Unless the proposed ward is a minor, a certificate from a doctor who has examined the proposed ward must be filed with the court.  There are specific requirements for the certificate, and it must be dated within 120 days of the filing of the application for guardianship, so you should consult an attorney for the specific requirements before the doctor conducts the examination which forms the basis for the certificate.  (Slightly different requirements apply for mentally retarded persons.)  The court will appoint an attorney -- called an attorney ad litem -- to represent the proposed ward, since the granting of a guardianship takes away some of the ward's civil rights.  Texas courts typically employ the doctrine of least restrictive alternatives in guardianship cases -- taking away as few of the ward's rights as possible and giving the guardian only those rights and powers as is necessary to protect the ward or the ward's property.

 

What are the powers and duties of a guardian of the person? 

It is impossible to include an exhaustive list of the duties of a guardian of the person here.  In general, a guardian of the person is a fiduciary and is held to the high standards to which all fiduciaries are held in caring for the ward.  The guardian of the person is required to post a bond in an amount set by the court to assure that the guardian fulfills his or her duties. Unless the guardian's duties are restricted by the court, the guardian of the person is entitled to the charge and control of the person of the ward and has the right to have physical possession of the ward and to establish the ward's domicile, the duty of care, control and protection of the ward, the duty to provide the ward with clothing, food, medical care and shelter and the power to consent to medical, psychiatric and surgical treatment.  However, the guardian of the personís powers to commit the ward to in-patient psychiatric treatment is limited.  Some families pursue a guardianship only to discover that the guardian cannot force the ward to submit to in-patient psychiatric care.  Be sure to ask your lawyer about this if this is one of the main reasons for seeking a guardianship.

All of this sounds pretty expensive.  Is it? 

Yes.  Guardianship law is designed to protect the rights and interests of the ward, and it does so by establishing procedures intended to assure guardian compliance with the rules.  These procedures necessitate a lot of lawyer involvement.  Establishing a guardianship can be expensive, and the costs of administering a guardianship of the estate can easily exceed the annual income of the estate.  For this reason, it is usually a good idea to see if there are any alternatives to a guardianship before starting down the guardianship path. 

My loved one needs the assistance of a guardian but can't afford it.  What can be done? 

Alternatives to guardianship should be considered.   If no alternatives are available, some charitable organizations provide assistance for guardianships of the estate.  Check with the local bar association or with the county court or probate court in your area to see if any are active in your area.

Guardianships are complicated and expensive, but sometimes they are necessary.

I was told I need a guardianship for my loved one.  Are there any alternatives

A guardianship may be the only way to care for the person or property of a minor or an incapacitated person, but often there are less costly, less burdensome alternatives.  Determining the best solution depends on the circumstances.  Your lawyer can advise you what is best in your situation.

What is a guardianship? 

A guardianship is a court-supervised administration for a minor or for an incapacitated person.  A person -- called the guardian -- is appointed by a court to care for the person and/or property of the minor or incapacitated person -- called the ward.  There are two types of guardians and guardianships.  A guardian appointed to take care of the physical well-being of a ward is called a guardian of the person, while a guardian appointed to take care of the ward's property is called a guardian of the estate.  In some cases, only one type of guardian is appointed for a particular ward.  In many cases, both a guardian of the person and a guardian of the estate are appointed for a ward.  (Often, but not always, they are the same person.

Do I have to be appointed guardian for my minor child? 

In most cases, parents are considered to be the natural guardians of the person of their minor children, so no court procedure is required to appoint a guardian of the person.  Even though a parent may be the natural guardian of the person of their minor child, they are not natural guardian of the estate -- a court proceeding is always required to become guardian of the estate.  If the child has property or income, in some cases provisions of the Family Code may permit guardianship of the estate to be avoided.  For example, parents have certain rights to the income of their minor child, and a managing conservator has certain rights regarding the child's property.  In many cases, however, a guardian of the estate will be required if the minor has property.  You should consult a lawyer for an evaluation of your particular fact situation and advice which is appropriate for you.

My son was injured in an automobile accident and I expect that he will receive a big insurance settlement.  Does this money have to go into a guardianship? 

Yes.  There are several non-guardianship alternatives if the property is being received pursuant to a judgment, including annuities and a special type of trust usually called a 142 trust because it is set up under Chapter 142 of the Texas Property Code.  A 142 trust is similar to an 867 trust.  The trustee generally must be a bank or trust company, and the trust can last until the minor reaches age 25.  A big advantage of 142 trusts over 867 trusts is that there is no annual accounting requirement and trustee compensation is less restrictive.  For these reasons, banks and trust companies often are willing to take smaller 142 trusts.

Uncle Benny left my daughter less than $100,000 without creating a trust.  Do I have to set up a guardianship? 

No.  One possibility is an 867 trust, discussed above.  If the property is cash and is under $100,000, Texas law has a procedure where the money may be placed in an interest-bearing account by the county clerk and held until the minor reaches age 18.  Your lawyer can tell you if this procedure is a good idea in your case.  The interest earned on the money may not be as great as a trust would earn, and it will be difficult or impossible to spend the money prior to the child reaching age 18, but there is no annual accounting requirement so the costs are reduced.

My child inherited an undivided interest in real property.  Do I have to set up a guardianship to sell it? 

Maybe not.  If the child's interest in the real property is worth less than $100,000 and if the other co-owners agree, Texas law has a procedure for getting court approval of the sale of the property and for placing the child's share of the proceeds in an interest-bearing account by the county clerk, where the money is held until the child turns 18.  Your lawyer can tell you if this procedure is available in your case.

How is a guardianship initiated? 

Any interested person may file an application with the proper court requesting that a guardian be appointed for a person believed to be incapacitated.

For purposes of guardianship, what is an incapacitated person? 

When a person is unable to provide food, clothing or shelter for him or herself, to care for his/her physical needs, or to manage his or her own financial affairs due to a mental or physical condition, he or she may be found to be incapacitated, and placed under guardianship.  A minor is also considered incapacitated.

Are there varying levels of incapacity? 

Yes. The doctor treating the person who is incapacitated must specifically set out in his or her letter to the court the mental or physical basis for the incapacity and the extent of incapacity.  He or she does so by answering questions concerning that personís ability to drive, vote, enter into a contract, manage money, and other acts.

If a guardian is appointed, can a person retain certain rights and powers? 

Yes.  A judge may appoint a guardian for an incapacitated person, but limit the guardianís powers so that all rights and powers except those granted to the guardian are retained by the incapacitated person.

What types of guardians are there? 

Generally, there is a guardian of the person and a guardian of the estate.  The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter.  The guardian of the estate has the duty and power to manage the incapacitated personís financial affairs.  One person can fill both positions.  And, you may have a guardian of the person only or a guardian of the estate only; you do not have to have both.

Who may serve as guardian? 

The court will appoint a guardian for an incapacitated adult person in the following order of priority:

1.      the incapacitated personís spouse;

2.      the personís nearest of kin;

3.      An eligible person who is best qualified to serve.

 

                 Who cannot serve as guardian? 

A person may not be appointed guardian if the person is a minor, a notoriously bad person, an incapacitated person, a person who is a party to a lawsuit effecting the incapacitated person (with some exceptions), a person who owes the incapacitated person money unless it is repaid, a person with adverse claims to the incapacitated person or his property, an inexperienced or uneducated person, a person the court finds unsuitable, a person eliminated in a personís designation of guardian, or a nonresident without a resident agent.

Is an alleged incapacitated person represented by an attorney? 

Yes.  When a guardianship is filed, the court appoints an attorney ad litem to represent the interests of the alleged incapacitated person.  The person may also retain his or her own attorney.

What are the costs involved in a guardianship? 

The costs of handling a guardianship include attorneyís fees, filing fees, attorney ad litem fees, and bond premiums to be paid out of the incapacitated personís estate.  If the incapacitated personís estate is insufficient to pay for the cost of the proceeding, such costs may be paid by the county treasury, if ordered by the court.

What rights does the incapacitated person have? 

The incapacitated person has the right to receive a copy of the application for guardianship and other documents filed with the County Clerk.  He or she is also entitled to be at the hearing to determine whether he or she is incapacitated, demand a jury trial and request that the hearing be closed to the public.  An incapacitated person retains all legal and civil rights and powers, except those designated by the courtís order appointing a guardian.

How soon can a guardianship hearing be held? 

The soonest date to schedule a hearing is the Monday following the expiration of 10 days after alleged incapacitated person and certain interested persons have been personally served with the application for guardianship.

What happens at the hearing?  

The person who filed the application must prove the incapacity through testimony and medical evidence.  The alleged incapacitated person has a right to bring his or her own witnesses to court and also the right to speak to the judge.  The alleged incapacitated person may also request a jury trial.  The judge or jury will determine if the person is incapacitated.

Once appointed, how does a guardian qualify? 

The guardian must file an oath and post a bond in the amount set by the court to insure proper performance of his or her duties.

Does the guardian have reporting requirements to the court? 

Yes.  The guardian of the estate must file an inventory within 30 days of qualifying.  The inventory must list all assets of the incapacitated person coming into the guardianís hands and all debts owed to the estate.  The guardian of the estate must file an annual account to report all receipts and disbursements.  The guardian of the person must file an annual report on the location, condition and well being of the incapacitated person.

What if there is an immediate need for the appointment of a guardian? 

A temporary guardian can be appointed if an alleged incapacitated person or his or her property is in imminent danger.

Does the person for whom a temporary guardian has been appointed have any rights?      
       
That person retains all rights and powers not granted to the temporary guardian, and are entitled to be served with a copy of the temporary guardianship application.  The Court must appoint an attorney to represent the alleged incapacitated person at the time the application is filed.  The court must hold a hearing no later than 10 days after the date of filing the temporary guardianship, unless the hearing is postponed, to determine whether there is a need for a temporary guardianship.

What is the length of a temporary guardianship? 

Generally, a temporary guardianship may not exceed 60 days.  However if there is a contest or challenge to a permanent guardianship application, the court may appoint a person to serve as temporary guardian until the contest is resolved.

 

 

 

ELDER ABUSE

 

What should I do if I suspect someone is neglecting, abusing or exploiting an elderly friend? 

If a person has reasonable cause to believe that an elderly or disabled person has been abused, exploited or neglected, they have the responsibility to report the facts to Adult Protective Services. Their toll free number is: 1-800-252-5400.

 

Am I required to report suspected elder abuse

The law mandates that all suspicion of elder abuse, exploitation or neglect be reported to Adult Protective Services. (1-800-252-5400)

 

What will happen if someone finds out that my grown child is hurting me?

If an individual has been physically abused the law requires that a report be made to the appropriate law enforcement agency.

 

What can I do to protect myself from an abusive caregiver or spouse

You need to file a report with Adult Protective Services (1-800-252-5400) and the appropriate law enforcement agency.

 

  

 

Link:  www.texasguardianship.org
(click on  About Guardianship)

 

 
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