IV. LIMITING THE EFFECT OF THE GUARDIANSHIP
30. Pre-Need Designation of Guardian - §679, Probate
Code For one’s self - An adult with capacity may, by
written declaration designate those persons whom the
declarant wishes to serve as guardian of the person or
of the estate of the declarant in the event of later
incapacity. The declaration may be holographic
(NEW!) or attested to by two witnesses,
age 14 years of age or older and who are not
designees to be guardian and a self-proving affidavit
should be executed and attached. Perhaps more
importantly , the declarant may also indicate those
persons who are to be specifically disqualified
from serving as guardian, either of the person or
estate, and such a disqualification is binding on the
court.
31. Pre-Need Designation of Guardian by Parent -
§677A, §702(c) Texas Probate Code Similarly, a
parent may designate, either in by separate written
declaration or in the parent’s will, those persons (in
preferential order) whom they desire to be guardian of
the person and/or estate of their child or children. The
designation may specify that the court waive bond as
to a guardian of the person, but not as to a guardian
of the estate This designation may be for either minor
children or for adult incapacitated children. (NEW!)
Like the designation for one’s self, the designation for
a child may be holographic or self-proven.
32.Pre-Need Declaration for Mental Health Treatment
§137.007 Civil Practice and Remedies Code
An adult with capacity may, by written declaration,
indicate the declarant’s preferences or instructions for
mental health treatment, including the right to refuse
such treatment. Such a declaration is effective on
execution and expires on the third anniversary of its
execution or when revoked, whichever is earlier. The
declaration is to be witnessed by two qualified
witnesses (similar to the Advanced Directive
witness qualifications). Physicians or other health care
provider are to follow such declaration, however, as
long as the declarant is capable for giving informed
consent, such informed consent is to be sought.
The designation does not apply if the declarant is
under a temporary or extended commitment and
treatment is authorized under the Mental
Health Code (Chapter 574, Health and Safety Code) or
in the case of an emergency when the declarant’s
instructions have not been effective in reducing the
severity of the behavior that has caused the
emergency.
33. Safekeeping or "Freeze" Agreements - §703,
Probate Code - Where the personal representative
deposits estate cash or other assets in a state or
national bank, trust company, savings and loan
association, or other domestic corporate
depository, to be held under an agreement that the
depository will not allow withdrawal or transfer of the
principal of the assets and/or interest on the deposit
except on written court order. (See example in
Appendix) The amount of the bond of the personal
representative may then be reduced in proportion to
the cash or other assets placed in safekeeping.
34. Restoration of Ward - §694A, Probate Code - This
wholesale revision of the 1994 restoration provisions
includes several innovations and additional
requirements in modifying the respective roles of the
guardian and ward or restoring the ward’s capacity and
terminating the guardianship A guardian ad litem
must be appointed and everyone noticed similar to the
original grant of guardianship.
35. Annual Determination - §672, Probate Code Each
year , the probate judge is required to review each
guardianship file created after September 1, 1993,and
may review annually any other guardianship files to
determine whether the guardianship should be
continued, modified, or terminated.
This provision appears fairly innocuous, but is in reality
very powerful. It was recently used in a very large
guardianship with massive pending litigation to restore
the ward’s capacity and terminate the guardianship.
Because the standards for the court are somewhat of a
blank slate (i.e. discretionary), especially in courts
other than statutory probate courts, this provision
could be employed in a number of creative ways.
Even though the procedure and standards for
modification under §694A are fairly restrictive (see
above), the annual determination under §672 contains
no such procedural requirements.
36.Emancipation of Minor Ward - §31.01ff, Family
Code - Where a minor who is over 16, self-supporting
(or married) and living apart from parents, a
conservator or guardian may ask the court to legally
remove the disabilities of minority for either limited or
general purposes. The petition is decided on a “best
interest” standard and the order is to specify whether
the removal of disabilities is limited or general in scope
and the purposes for which disabilities are removed.
37. Enumeration of Powers in Guardianship Order
§693, Probate Code If the guardianship is to be a
plenary guardianship, it is perhaps best to simply
reflect in the order that “The guardian is to be granted
all power and authority allowed under Texas law and
the rights of the ward are limited to the extent not
inconsistent therewith.” Otherwise, attempting to cover
everything by an exhaustive listing may leave the
guardian with specific deficits. Some attorneys feel
that a listing of eight or ten powers is complete, while
others can go on for pages.
However, if the ward is partially capacitated, a careful
enumeration of those areas in which the ward’s rights
are not to be limited can have a great effect on the
ward’s functioning ability and self-esteem.
38. Negligible Estate §745(a)(5)&(b), Probate Code
when the ward’s estate is exhausted or when the
foreseeable income accruing to a ward or his estate is
so negligible that maintaining the guardianship would
be a burden, the court may authorize the income to be
paid to a parent or other person acting as guardian, to
assist as far as possible in the maintenance of the
ward, and without any liability for future accountings as
to the income.
39. Minor Ward’s Estate < $100,000 §§745(c)&887,
Probate Code Unlike the adult ward’s estate, which is
needed for the upkeep and maintenance of the ward, a
minor ward’s guardianship estate is less likely to be
called upon for day-to-day living expenses. If the
guardian of the estate is a parent of the ward, the
court is usually going to want to see some proof that
the guardian/parent cannot make the expenditures out
of his/her own pocket rather than out of guardianship
assets. The mindset here is more of asset
preservation and maybe some college planning,
assuming of course that the minor ward has no special
needs to deplete the estate. If the estate cash falls
below $100,000 (up from $50,000 in 2001), the
guardianship of the estate may be closed and the
remaining funds paid into the court registry.
Withdrawals are then possible under the procedure set
out under §887 above.
40. Family Settlement Agreements A Family Settlement
Agreement to implement a negotiated resolution to
existing disputes and/or to alter existing financial
arrangements (e.g: alteration of an inter vivos trust to
be made irrevocable or established as a special needs
trust or §867 guardianship management trust.) This
may or may nor require the joinder of the ad litem(s)
and approval by the court.
41. Mother Nature and Father Time It is not unusual -
once a person gets adequate nutrition/ hydration/
socialization / therapy/ medication for a few weeks or
months - for many symptoms of delirium/ confusion/
diabetic conditions to clear up. In some instances, it is
a question of employing successive alternatives in an
effort to forestay the inevitable, whether a
guardianship or death.
By the same token, it is rarely in the best interest of a
terminally-ill proposed ward to go through successive
independent medical examinations and for extensive
litigation to exhaust an already beleaguered estate,
only to have the ward die the day after letters are
granted.
30. Pre-Need Designation of Guardian - §679, Probate
Code For one’s self - An adult with capacity may, by
written declaration designate those persons whom the
declarant wishes to serve as guardian of the person or
of the estate of the declarant in the event of later
incapacity. The declaration may be holographic
(NEW!) or attested to by two witnesses,
age 14 years of age or older and who are not
designees to be guardian and a self-proving affidavit
should be executed and attached. Perhaps more
importantly , the declarant may also indicate those
persons who are to be specifically disqualified
from serving as guardian, either of the person or
estate, and such a disqualification is binding on the
court.
31. Pre-Need Designation of Guardian by Parent -
§677A, §702(c) Texas Probate Code Similarly, a
parent may designate, either in by separate written
declaration or in the parent’s will, those persons (in
preferential order) whom they desire to be guardian of
the person and/or estate of their child or children. The
designation may specify that the court waive bond as
to a guardian of the person, but not as to a guardian
of the estate This designation may be for either minor
children or for adult incapacitated children. (NEW!)
Like the designation for one’s self, the designation for
a child may be holographic or self-proven.
32.Pre-Need Declaration for Mental Health Treatment
§137.007 Civil Practice and Remedies Code
An adult with capacity may, by written declaration,
indicate the declarant’s preferences or instructions for
mental health treatment, including the right to refuse
such treatment. Such a declaration is effective on
execution and expires on the third anniversary of its
execution or when revoked, whichever is earlier. The
declaration is to be witnessed by two qualified
witnesses (similar to the Advanced Directive
witness qualifications). Physicians or other health care
provider are to follow such declaration, however, as
long as the declarant is capable for giving informed
consent, such informed consent is to be sought.
The designation does not apply if the declarant is
under a temporary or extended commitment and
treatment is authorized under the Mental
Health Code (Chapter 574, Health and Safety Code) or
in the case of an emergency when the declarant’s
instructions have not been effective in reducing the
severity of the behavior that has caused the
emergency.
33. Safekeeping or "Freeze" Agreements - §703,
Probate Code - Where the personal representative
deposits estate cash or other assets in a state or
national bank, trust company, savings and loan
association, or other domestic corporate
depository, to be held under an agreement that the
depository will not allow withdrawal or transfer of the
principal of the assets and/or interest on the deposit
except on written court order. (See example in
Appendix) The amount of the bond of the personal
representative may then be reduced in proportion to
the cash or other assets placed in safekeeping.
34. Restoration of Ward - §694A, Probate Code - This
wholesale revision of the 1994 restoration provisions
includes several innovations and additional
requirements in modifying the respective roles of the
guardian and ward or restoring the ward’s capacity and
terminating the guardianship A guardian ad litem
must be appointed and everyone noticed similar to the
original grant of guardianship.
35. Annual Determination - §672, Probate Code Each
year , the probate judge is required to review each
guardianship file created after September 1, 1993,and
may review annually any other guardianship files to
determine whether the guardianship should be
continued, modified, or terminated.
This provision appears fairly innocuous, but is in reality
very powerful. It was recently used in a very large
guardianship with massive pending litigation to restore
the ward’s capacity and terminate the guardianship.
Because the standards for the court are somewhat of a
blank slate (i.e. discretionary), especially in courts
other than statutory probate courts, this provision
could be employed in a number of creative ways.
Even though the procedure and standards for
modification under §694A are fairly restrictive (see
above), the annual determination under §672 contains
no such procedural requirements.
36.Emancipation of Minor Ward - §31.01ff, Family
Code - Where a minor who is over 16, self-supporting
(or married) and living apart from parents, a
conservator or guardian may ask the court to legally
remove the disabilities of minority for either limited or
general purposes. The petition is decided on a “best
interest” standard and the order is to specify whether
the removal of disabilities is limited or general in scope
and the purposes for which disabilities are removed.
37. Enumeration of Powers in Guardianship Order
§693, Probate Code If the guardianship is to be a
plenary guardianship, it is perhaps best to simply
reflect in the order that “The guardian is to be granted
all power and authority allowed under Texas law and
the rights of the ward are limited to the extent not
inconsistent therewith.” Otherwise, attempting to cover
everything by an exhaustive listing may leave the
guardian with specific deficits. Some attorneys feel
that a listing of eight or ten powers is complete, while
others can go on for pages.
However, if the ward is partially capacitated, a careful
enumeration of those areas in which the ward’s rights
are not to be limited can have a great effect on the
ward’s functioning ability and self-esteem.
38. Negligible Estate §745(a)(5)&(b), Probate Code
when the ward’s estate is exhausted or when the
foreseeable income accruing to a ward or his estate is
so negligible that maintaining the guardianship would
be a burden, the court may authorize the income to be
paid to a parent or other person acting as guardian, to
assist as far as possible in the maintenance of the
ward, and without any liability for future accountings as
to the income.
39. Minor Ward’s Estate < $100,000 §§745(c)&887,
Probate Code Unlike the adult ward’s estate, which is
needed for the upkeep and maintenance of the ward, a
minor ward’s guardianship estate is less likely to be
called upon for day-to-day living expenses. If the
guardian of the estate is a parent of the ward, the
court is usually going to want to see some proof that
the guardian/parent cannot make the expenditures out
of his/her own pocket rather than out of guardianship
assets. The mindset here is more of asset
preservation and maybe some college planning,
assuming of course that the minor ward has no special
needs to deplete the estate. If the estate cash falls
below $100,000 (up from $50,000 in 2001), the
guardianship of the estate may be closed and the
remaining funds paid into the court registry.
Withdrawals are then possible under the procedure set
out under §887 above.
40. Family Settlement Agreements A Family Settlement
Agreement to implement a negotiated resolution to
existing disputes and/or to alter existing financial
arrangements (e.g: alteration of an inter vivos trust to
be made irrevocable or established as a special needs
trust or §867 guardianship management trust.) This
may or may nor require the joinder of the ad litem(s)
and approval by the court.
41. Mother Nature and Father Time It is not unusual -
once a person gets adequate nutrition/ hydration/
socialization / therapy/ medication for a few weeks or
months - for many symptoms of delirium/ confusion/
diabetic conditions to clear up. In some instances, it is
a question of employing successive alternatives in an
effort to forestay the inevitable, whether a
guardianship or death.
By the same token, it is rarely in the best interest of a
terminally-ill proposed ward to go through successive
independent medical examinations and for extensive
litigation to exhaust an already beleaguered estate,
only to have the ward die the day after letters are
granted.
Here is some excellent
information on alternatives to
guardianship. This is to aid
you in the process and
educate you in your choice of
attorney. It is not specific
legal advice and will not, by
itself, constitute an attorney /
client relationship.
Special thanks to Judge King
in the first Tarrant County
Probate Court, on whose
material this is largely based.
information on alternatives to
guardianship. This is to aid
you in the process and
educate you in your choice of
attorney. It is not specific
legal advice and will not, by
itself, constitute an attorney /
client relationship.
Special thanks to Judge King
in the first Tarrant County
Probate Court, on whose
material this is largely based.
 | Avoiding Guardianship of | |
| the person |
| Advanced Medical Directives |
| Avoiding a Guardianship of | |
| the Estate |
| Limiting the Effect of the | |
| Guardianship |
Law Office of Eric J. Smith
2310 W. Interstate 20, Ste 206
Arlington, TX 76017
ph: 817-860-2800
fax: 817-860-2801
eric@midcitieslaw.com
Arlington, TX 76017
ph: 817-860-2800
fax: 817-860-2801
eric@midcitieslaw.com
| Copyright 2007-2011 Eric J. Smith All rights reserved. |
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