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What 2 courts are granted jurisdiction over guardianship proceedings?
- County Courts
- Statutory Probate Courts
Venue over guardianship proceedings for a minor, w/ living parent(s), may be brought in county where: (3)
1) both parents reside
if joint mgr conservator = where minor resides the greater period
- 2) parents not in same county = where parent who is sole mgr conservator resides
3) only 1 parent living and parent has custody = where that parent resides
Venue over guardianship proceedings for a minor, w/o living parents, may be brought in county where: (3)
1) both parents dead = where last surviving parent having custody resided
2) parents died in common disaster = where both parents resided at time of simultaneous deaths if in same county
- 3) Will was admitted to probate appt G
- appointee's residence if apptee resides in this state
Venue over guardianship proceedings for a missing person may be brought in county where: (3)
1) MP's spouse resides
2) if no spouse = where parent or child of MP resides
3) if no spouse, parent or child = where MP's next of kin resides
T/F: Parents or guardians of a minor incapacitated person (minor who will require guardianship after 18yrs old) may file an application for guardianship of the MIP prior to MIP reaching 18 yrs.
TRUE - Section 682 of Probate Code states person may file application for appt of G of person and/or estate of W no earlier than 60th day before W's 18th b-day.
5-part process to initiate and administer a guardianship, whether of person or estate:
1) Application for appt of G
2) Citation to all interested parties
3) file Proof of W's inc. and estate
4) Hearing on propriety of appl for G
5) Order appt G
T/F: Only relatives of a proposed W may commence a proceeding for appt of G by filing appl in court having jurisdiction and venue.
FALSE - Any person may commence a proceeding for appt of G by filing appl in court having jurisdiction and venue
T/F: Notice and citation for guardianship proceedings are the same as probate notice and citation.
TRUE - court may not act on G appl until Monday after expiration of 10 days from date clerk posted citation
LUS Before a hearing, notice must be given to all interested persons via posting, cert. mail, or citation
T/F: Once proper notice has been given to all interested parties, a hearing is scheduled to determine propriety of applicants appl for G.
TRUE - At hearing, Judge shall hear evidence and proof supporting facts in appl; if sufficient, court will issue order granting G
Before appting a G, court must find by clear and convincing evidence that: (3)
1) Prop. W is incapacitated person
2) best interest of PW to appt G
3) rights of PW or PW's property will be protected by appt of G
Before appting a G, the court must find by a preponderance of the evidence that: (4)
1) court has venue
2) person to be apptd is eligible and entitled to serve as G
3) G of a minor not soley to determine or change schools or school districts
4) PW is totally inc., or partially inc., and can perform some, but not all, tasks necessary to care for self and manage property
T/F: A determination of incapacity of an adult PW, other than missing person or a person who must have a G appt to receive funds due person from any gov source, must be evidenced by recurring acts or occurences w/in preceding 12 month period and not by isolated instances of negligence or bad judgment.
FALSE - must be evidenced by recurring acts or occurences w/in preceding 6 month period and not by isolated instances of negligence or bad judgment.
Order appt a G must contain finding of fact regarding the circumstances of the W and specify: (6)
1) name of person appt
- 3) whether G of P/E or both
4) amount of any bond required
- 5) if G of E and court deems appraisal necessary = 1 or more (not >3) disinterested persons to appraise E and return appraisement to court
- 6) issuance of Letters of G when person has qualified by law
Guardianship shall be settled and closed when inc. person, not a MP: (3)
- 1) dies
- if W was married = W's spouse qualifies as survivor in community
- 2) court finds W to have full capacity to care fo self and manage property
- 3) W no longer a minor
Guardianship shall be settled and closed when a MP: (6)
- 1) confirmed dead
- 2) legally declared dead
- 3) returns
- 4) whereabouts determined
- 5) no longer needs G
- 6) no longer must have G to receive funds from gov source
Upon issuance of Order appt G, apptd G must qualifty to serve (hint: qualifications same as probate): (2)
1) sign oath w/in 20 days of appt
2) procure bond in amount specified by court unless bond is waived by court
To ensure performance of the G's duties, the court may accept only these types of bonds (4)
- 1) corporate surety bond
- 2) personal surety bond3) deposit of money instead of surety bond4) personal bond
T/F: Guardian must give notice to the creditors of the estate.
Bonding requirement is automatically waived for a corporate fiduciary serving as G of E, otherwise bond shall be in amount equal to: (3)
- value of W's personal property +
- liquid assets +
- anticipated revenue for first 12 months after initiation of G Admin
G of the E required to give Notice to Creditors within X of issuance of Letters of G: (2)
- 1) Unsecured creditors via publication = 1 month
- 2) Secured creditors via cert mail w/ RRR = 4 months
T/F: G of E required to file Inventory within 45 days of issuance of Letters of G.
FALSE - Inv. must be filed w/in 30 days of L of G, unless extension is granted.
- Inventory must include:
- 1) all real property of W in Texas
- 2) all personal property located wherever
- 3) FMV of each asset as of date of appt as G
- 4) specify separate and community property
A full and complete List of Claims due or owing to the W must state: (5)
1) debtor name & address
verbal contract / written obligation/ note)
- 3) date of indebtedness and date debt is due
- 4) amount for each claim, interest rate, time for which claim bears interest
- 5) what portion of claim held in common with others (include details of other part owners)
Guardianship programs established by the courts are not liable for civil damages from an action or omission of G to W, unless: (4)
- 1) willfully wrongful
- 2) conscious indifference or reckless disregard to the safety of the incapacitated person or another
- 3) in bad faith or with malice
- 4) grossly negligent