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TX Bar Exam

Additional Law Flashcards




What are the rights and obligations of a guardian of a PERSON?

Right to physical possession of the ward.

Duty of Control and care,

provide clothing, food, medical care & shelter

power to consent to medical treatment


Bond  required but may be waived.

What are the duties and obligations of a guardian of the estate?

Right & Duty to manage the ward's property

Right to enforce ward's obligation

Right to bring or defend suits on ward's behalf


Bond is required to be a guardian of the estate

Can a parent choose a child's guardian?

A parent may by will or other written declaration appoint a guardian of their minor children or incapacitated adult children.

The named person MUST be appointed UNLESS the court finds them to be disqualified, dead, wouldn't serve or not in the ward's best interest.


What is the proper venue for appointment of guardian?

minors:  the county where parent(s) reside

adults: county where ward resides or where his princiapl estate is located

Who has standing to commence a proceeding for the appointment of a guardian?

ANY PERSON has standing to commence the proceeding


can recover attorney's fees if the court finds that the proceeding was brought in good faith


Who is NOTeligible to be appointed guardian?

  1. incapacitated persons
  2. conflict of interest unless court determines no conflict or a guardian ad litem is appointed
  3. inexperience, lack of ed, other reason that  makes them incapable of prudently managing the estate
  4. person w/ notoriously bad conduct
  5. disqualified by designation
  6. convicted of a sexual offense (preseumed not in the best interest)
When is a limited guardianship appropriate?
When the court finds that a person lacks capacity to do some but not all of hte tasks necessary to care for himself, the court may appoint a guardian with limited powers & permit the individual to care for himself to the extent that he is able.
What are the guardian's duties upon appointment?

A guardian must qualify by taking an oath & posting fiduciary bond w/i 20 days.

Publish notice of administration in newspaper w/i 1 mo.

File inventory of the estate w/i 30 days.

File application for monthly allowance w/i 30 days.

File application to develop investment plan w/i 180 days


When can a guardian be removed without notice or hearing?

When he fails:

to post bond in 20 days,

moves from TX or is absent for more than 3 mos or cannot be served w/ notcies, has cruelly treated the ward, failed to maintain or educate the ward, or misapplied or embezzeled assets.

CLEAR AND CONVINCING is the burden of proof

When can a guardian be removed with notice and hearing?

if there are grounds to believe guardian acted inappropriately,

guilty of gross misconduct or mismanagement,

fails to comply with court order or file annual report,

or if he becomes incapcitated or for some other reason is incapable of performing his duties

What powers may a guardian exercise without court approval?
  • retain property w/ no duty to diversify for 1yr
  • make investment decisions consistent w/ crt approved plan
  • expend amounts in excess of monthly allowance when prior approval is not possible ofr convenient of there is clear & convincing evidence that they are reasonable and proper
  • insure property and pay taxes as necessary to maintain it


What is required for a guardian to sell real or personal property?
Prior court approval & must be sold for the purpose of paying claims and expenses, ward's maintenance or to dispose of unproductive property
How is a guardian compensated?

Guardian of the person: 

entitled to 5% pf ward's gross income, not inclduing government income

Guardian of the estate:

entitled to reasonable compensation (5% income + 5% paid out)

What is another procedure available for handling money when the ward does not have the capacity to do so?

$100k or less can be paid into the registry of the court to avoid a gaurdianship but it requires the ward to petition the court for each distribution.


Also, if there is a guardian, a court created management trust under §867 of the probate code for a minor settlement.  If more than $50k, a bank must be trustee.  Trust continues up to age 25.


If no guardian, an Art. 142 will accomplish the same result but a bank must always be trustee

What is a less expensive way of handling the guardianship of an adult ward's estate?
A guardian of the person can be appointed GUARDIAN TO RECEIVE FUNDS FROM GOVERNMENT SOURCE & can thus expend payments on ward's behalf w/o court order, if the amount is less than $12k a year.
Did a court err in appoiting someone other than a surviving legal parent to be a child's guardian?
Although the probate code provides that upon the death of one parent, the surviving parent is the child's natural guardian and is eligible to be appointed guardian of the estate, the court properly could have found that the surviving parent is disqualified to serve as guardian over the person or the estate.  There are several grounds for disqualification.  The court could have properly applied this test in declining to appoint the surviving parent.
Should a 12 year old's  declaration of desire to have a particular guardian appointed be considered?

Yes.  Under the probate code, a minor at least 12 years of age may choose her guardian in a writing filed with the court.

THe court will appoint the designated person if the court approves the choiced and finds that the appointment is in the child's best interest.


Can a letter signed by a mother stating her current husband (step-father) is to be the guardian of of her minor child although her biological father is still alive be binding on the court?



Whether a parent can designate a nonparent as her child's guardian when the other parent is still alive?


The letter doe snot have effect of requiring the court to appoint the nonparent.  The Probate Code authorizes the last surviving parent to make a written designation of guardian of a minor child.

Furthermore, even if the parent was the last surviving, the written declaration would not require the court to appoint the nonparent. While such a declaration raises a presumption that appointment of the desginated person would be in teh child's best interest, it is not conclusive.  THe court must make a determination that the person is not disqualified and in the child's best interest.


What threshold facts must an applicant prove to establish the necessity for a guardianship & by what evidentiary standard must they be proven?


At issue are the requirements to be appointed as guardian of the person and/or the estate.


The applicant must show by:

Clear and convincing evidence: 

  • person is incapcitated
  • it's in person's best interest to have a guardian
  • person's rights & property will be protected

Preoponderance of the evidence:

  • either totally w/o capacity to care for himself and  manage his property or lacks the capcity to do some but not all of the tasks necessary to care for himself and his property
  • the applicant is eligible to be appointed guardian
  • and naming the applicant as the guardian is in the person's best interest




Is a court bound by guardianship provided in wills?





The court is not bound.  ALthough there is a presumption that appointment of person named in the will would be in the best interest of the ward, the designation is not conclusive as the court must determine if the person is a disqualified person or if the appointment would in fact be in the best interest of the ward.

Who is the court likely to appoint guardian over:

1.  the person

2.  the estate?



At issue are the factors a court looks to in determining the best guardian.


Person:  Ability of the person to care and provide a consistent routine as close as possible, the desire of the ward,


Estate:  depending og amount of the estate, expertise in managment of money and investments, desire to serve, willingness to serve uncompensated

Who is eligible to be appointed guardian of the person and estate of a minor if not designated by last surviving parent?

1.  grandparent

2. next of kin in nearest degree


Who is eligible to be guardian of incapcitated adult?



1.  person named by last surviving parent in will or other declaration

2. Person named in written and witned Designation of Guardian Before Need Arises

3.  in the absence of any writing:


next of kin in bearest degree

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