Guardian Ships

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Guardianships

I. IntroductionA. Guardianship Codegives procedures for guardians for minors or incapacitatesB. Overview of Guardianship Administration

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Guardianperson appointed by probate court charged with care andmanagement of person or property or both of a minor, called a ward; two

roles:

a) Guardian of the personb) Guardian of the Estate

2. Minorperson under 18 who has never been married and who has not had thedisability of minority removed by judicial process

3. Incapacitated Adultone who substantially unable to provide food, clothing,shelter for himself, to care for physical health, or manage financial affairs

4. Limited Guardianships Encourageda) Guardians may have full or limited authorityb)

Indicated by persons actual mental or physical limitationsc) Only given as necessary to promote/protect persons well-being

d) If person is not a minor, age may not be the sole factor in appointing aguardian

C. Guardian of the Person1. Rightto take charge of the ward and establish legal domicile 2. Dutyto provide care, supervision, and protection as well as clothing, food,

medical care, and shelter3. Guardian may consent to treatment for ward

D. Guardian of the Estate1. Rightto possess and manage the wards property, enforce obligations for the

ward, and bring/defend suits by or against ward2. Dutyto take care of and manage the wards estate as a prudent person would3. Must account for all rents, profits, and revenues earned by the estate

E. Guardianship of the Estate Compared to Other Fiduciary Officers1. Compared to Trust

a) Similar to trust administrationb) Guardianship is subject to strict court supervisionc) Guardians must obtain prior approval for all but extremely routine

transactionsd) Trustees powers are broad; guardians are limited to those authorized

by statutee) Guardian mustgive bond and mustfile annual accountings

2. Compared to Estate Administrationa) Generally similarboth involved court-supervised administrationsb) Statutes that prescribe powers that can be exercised are almost

identical; laws and rules for estates of decedents are very similarc) Major differenceestate administration is short term; guardianship is

long term


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d) Guardian is more likely to be asked to make investment decisions andperiodic distributionsestate administrator usually just holds on handuntil distribution for when estate is closed

e) So if you cant remember rule for guardian give rule for dependentadministrator

II.Jurisdiction and VenueA. Proceeding in Remguardianship administration of a wards estate is a proceeding

in remto determine title to or interests in specific propertyB. Jurisdictionnearly identical to administration of estates

1. County court has jurisdiction forall matters appertaining to or incident to aguardianship estate

2. If county has statutory probate courthas jurisdiction over any matterappurtenant to guardianship estate and any action in which guardian is a party

3. If statutory county court at lawall guardianships are filed and heard in thatcourt or the constitutional county court

4. Smaller counties that have constitutional county courts onlythe county anddistrict courts have concurrent jurisdiction5. 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 Guardian1. Guardianship of MinorWhere Parents Reside

a) May be brought in the county where both parents resideb) If not in the same countycounty of resident of parent who is sole

managing conservator or joint with greater physical possession

c) If only one parent is living and has custodywhere that parent residesd) If both parents are dead and minor was in custody of deceased parent

where the last surviving parent resided

2. Guardianship of Incapacitated Adultvenue lies where either:a) County of residence of the proposed ward, orb) County in which principal estate of proposed ward is located

3. Appointment of Guardian by Willcounty where will is probated orappointees residence

4. Venue in more than one countyjurisdiction lies in the first filed5. Transfer of Guardianshipcourt may transfer when movant provides

sufficient reasons for a transfer

III.Who May Be Appointed GuardianA. Guardian for Minor

1. Parent is Livinga) Parents are natural guardians of minor childrenguardian of the

person does not have to be appointed if either of minors parents isliving

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 childrenseparate guardianship of

estate must be made for each child


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e) One parent can be guardian of all childrenf) If parents disagreecourt makes appointment on parents

qualificationsg) If one parent is deadsurvivor is natural guardian of person and

entitled to be appointed guardian of estate

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Minor is Orphaneda) Last surviving parent may by will or written declaration appoint aguardian for minor children

b) Court will generally honor appointmentc) Written declaration must:

(1)Be signed by the parent, or(2)Either written wholly in his handwriting orattested to by two

witnesses age 14 or olderd) If last surviving parent did not appoint a guardian childs

grandparent is entitled to be guardian of both person and estate e) If more than one grandparentone must be appointed, taking into

account best interests of minorf) If no grandparentsnearest king) If no relative is eligible or interestedcourt appoints a qualified

person as guardianh) Minor 12 years or older may choose guardian

B. Guardians for Non-Minors1. Court appoints guardian according to best circumstances and interests of ward2. Probate court has broad discretion3. Wards spouse is entitled to be guardian in preference of anyone else4. If ward is not married or spouse is disqualified, nearest kin is entitled5. If no relativescourt appoints eligible person bets qualified6. Court must make reasonable effort to consider persons preference to guardian7. Last surviving parent of incapacitated adult may be appointed a guardian in

the manner described for minor childrenC. Designation of Guardian Before Need Arisesperson may choose a guardian

beforehand by written and witnessed declaration1. Court does not have to pick that person, but will be presumed as in wards

best interests2. May also declare who you dontwantthen court cant appoint them

D. When Joint Guardians Permitted1. As a ruleonly one guardian2. Joint guardians allowed if:

a) Husband and wifeb) Joint managing conservators of childc) Appointed joint guardians in another state, ord) Parents of an adult incapacitated child even if unmarried

3. Typicallysame person is both kinds of guardians, but may splitE. Nonresident Guardiansometimes necessary; nonresident can be issued letters of

guardianship upon filing POA appointing resident agent to accept service of process

Documents

Guardian Ships