Guardianship Primer.txt

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Author:
nikizalez
ID:
110650
Filename:
Guardianship Primer.txt
Updated:
2011-10-20 16:55:50
Tags:
Guardianship
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G-ship
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  1. Jurisdiction & Venue
    JX: county court

    Venue: residence, where estate is located

    for minor: parents residence
  2. Avoid Guardianship ($)
    867 Trust (Trustee must be corp unless willing to serve and under $50k)

    Registry of Court (less than 100k)
  3. Standing
    - any person can insitute/contest

    - except: person w/ adverse interest

    - Motion in Limine: contest to standing
  4. Disqualifcatio of G'
    • 1. minor
    • 2. notoriously bad
    • 3. incapacitated
    • 4. person party to lawsuit concerning ward:
    • -unless no conflict or court apoints g' ad litem
    • 5. adverse, unsuitable, inexperience, etc.
    • 6. non-resident
    • 7. Disqualified by declaration
  5. Application:
    • 1. name, sex, address, bday
    • 2. name and relationship of proposed G'
    • 3. P/E or both
    • 4. nature anddegree of incapacity
    • 5. term right to vote; operate vehicle
    • 6. existing G'
    • 7. facts
    • 8. POA?
    • 9. minor: parent, siblings, next of kin
    • 10. minor: subject to conservatorship w/in 2 yrs
    • 11. venue
  6. Guardians Eligibility
    • 1. Designation in Declaration
    • 2. spouse
    • 3. nearest kin
    • 4. eligible person (no one else eligible/refuse to serve/2 have same level of kin)
    • 5. W can express preference in ad litem answer or in court
  7. Medical Evidence
    • - w/ application
    • - extent of incap
    • -by physician
    • -no earlier than 120 days before application filed
    • - can file motion if unable to obtain
  8. Notice and Citation Contents
    • - Application filed
    • - name ward
    • - name applicant
    • - ID proposed G
    • - posted
  9. Citation by Mail
    • - ward
    • - adult children
    • - admin of nurse home / facility
    • - POA holder
    • - next of kin
    • - person designated in Will/Declaration
  10. Notice and Citation (personal)
    • - Ward > 12
    • - ward's parents
    • - court appointed conservator w/ care of ward
    • - spouse
    • - proposed G'
    • - applicant must file affidavit w/ court
  11. Court Investigator
    • - after application / notice / med letter
    • - determine less restrictive process
    • - investigate complaints
    • - file report
  12. Attorney ad Litem
    • - meet ward
    • - explain facts / law
    • - review records
    • - interview
    • - appear at hearing
    • - file answer
  13. Court Findings (C/C evidence)
    • - incapacitated
    • - G is in best interest
    • - rights of ward will be served / protected
  14. Findings (preponderance of evidence)
    • - venue
    • - G eligible
    • - purpose not to establish residency
    • - ward totally (or partially) without capacity to manage affairs
  15. Presence of Ward
    - must be present at hearing, unless:

    • 1. aattorney ad litem announces unable at hearing
    • 2. medical reason
    • 3. refuses
  16. Co-Guardians
    Only 1 (or 1 for E and 1 for P)

    except:

    • 1. H/W as co-G
    • 2. joing managing conservator
    • 3. co-G in other than TX
    • 4. parnets of incapacitated adult child (w/ exceptions)
  17. Order Contents
    • 1. name G
    • 2. powers and limits
    • 3. mental reason or not
    • 4. drive / vote
    • 5. name ward
    • 6. P/E or Both
    • 7. bond amount
    • 8. appraisal necesssary
    • 9. court will issue letters
    • 10. G' has full authority
    • 11. amoutn of estate allowed to expend on education and maintenance
  18. Bond and Oath
    P: personal, cash in lieu, corp surety

    E (or P/E) = non-real property & income for 12 months

    file oath
  19. Letters Expiration & Accounting
    1 year & 60 days

    • Renew w/ :
    • 1. annual accounting and/or
    • 2. annual report of well being
  20. Duties and Powers of Guardian of Person
    • - possession
    • - supervise and protect
    • - food / clothing / shelter
    • - consnet to med treatment
    • - set up Trust (w/ court consent)
  21. Duties and Powers of Estate (w/o permission)
    • - possession of property
    • - collect $ owed
    • - suits
    • - manage estate as "prudent person would w/ his/her own property"
    • - release lien / vote / insure / taxes / expenses
  22. Powers of Guardian of Estate (w/ permission)
    • - purchase / exchange property
    • - compound debt
    • - settle dispute
    • - abandon property
    • - establish trust
    • - burial prepay
  23. w/in 30 days (4 items)
    • - Possession of Estate
    • - Inventory
    • - publish notice to creditors
    • - application for monthly allowance
  24. Half-siblings
    inherit 1/2 of full siblings

    survived by full sibling and 1/2 sibling

    full = 2/3

    half = 1/3
  25. Survived by 1 parent and siblings
    = 1/2 to parent

    = 1/2 to siblings (basically per stirpes to deceased parent's descendants - pay attention to any 1/2 sibs)
  26. Method to avoid G of Person
    POA

    Consent to Med Treatment Act - (in facility)

    Emergency Med Treatment (no consent required)

    Advanced Dir

    DNR

    Declaration for Mental Health Treatment (executed)

    Mental Illness Commiment pursuant to Mental Health Act
  27. Methods to Avoid G of Estate
    Durable POA

    Rev Trust

    Community Administration (spouse wiht capacity authortity to manage community estate when other spouse judicially delcared incompetent)

    867 (ward's funds) / 142 trust (funds from suit)

    Deposit in Court Registry
  28. Methods to Avoid G of Minor
    Managing Conservatorship - no authority over property

    Sale of Property of Minor w/o G: parent / less than 100k

    School Admission Procedures

    Med Treatment for Minors: parent/conservator signs

    Emergency Med Treatment - no consent needed

    Advanced Directive (spouse, parent, g)

    DNR

    Deposit in Court Registry

    UTMA

    Receivership - appointed if estate is in danger or waste, loss, injury, etc.
  29. 867 Application & Proof
    • 1. Incapacitated/Minor
    • 2. Applicant
    • 3. nature and degree of incapacity
    • 4. facts why should create and applicant's interest
    • 5. no guardianship exists
    • 6. value and description of property
    • 7. terms of proposed trust
    • 8. any power of attorney
    • 9. venue
    • 10. no guardianship necessary
    • 11. best interest of ward to create trust

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