www.jackwilburn.com guardianship: do you know the secret?

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Guardianship:Guardianship:Do you know the secret?Do you know the secret?


OverviewOverview

What is Guardianship?What is Guardianship? How is one created?How is one created? How does one work?How does one work? Pros and Cons of GuardianshipPros and Cons of Guardianship Guardianship AlternativesGuardianship Alternatives Tales from the FrontTales from the Front


What is Guardianship?What is Guardianship?

Simply put, Guardianship law is a system to Simply put, Guardianship law is a system to protect the rightsprotect the rights and liberties of those who and liberties of those who cannot protectcannot protect or care for or care for themselvesthemselves.. Guardianship law is found in Sections 600 – 905 in Guardianship law is found in Sections 600 – 905 in

the Texas Probate Code (TPC) and relevant case lawthe Texas Probate Code (TPC) and relevant case law Guardianship is like probate for the livingGuardianship is like probate for the living

Who needs a Guardianship?Who needs a Guardianship? IncapacitatedIncapacitated MinorMinor

Two types of GuardianshipTwo types of Guardianship Guardianship of the Guardianship of the PersonPerson Guardianship of the Guardianship of the EstateEstate



What is Incapacity? TPC 601What is Incapacity? TPC 601 A Minor – a person A Minor – a person under 18under 18 who has never been who has never been

married or had the disabilities of minority married or had the disabilities of minority removed;removed;

An adult who, because of a physical or mental An adult who, because of a physical or mental condition, is condition, is substantially unable to provide food, substantially unable to provide food, clothing or shelterclothing or shelter for herself, to for herself, to care forcare for the the individual’s individual’s own physical healthown physical health, or to , or to managemanage the individual’s the individual’s own financial affairsown financial affairs; or; or

A person who must have a guardian appointed to A person who must have a guardian appointed to receive fundsreceive funds due the person due the person from any from any governmental sourcegovernmental source..



Guardianship of the Person TPC 767Guardianship of the Person TPC 767 The Guardian of the Person is entitled to the The Guardian of the Person is entitled to the

charge and control of the Ward including (1) the charge and control of the Ward including (1) the right to have right to have physical possessionphysical possession of the Ward of the Ward and to and to establish the Ward’s legal domicileestablish the Ward’s legal domicile; (2) ; (2) the the dutyduty of of care, controlcare, control and and protection protection of the of the Ward; (3) the duty to Ward; (3) the duty to provideprovide the Ward with the Ward with clothing, food, medical care and shelterclothing, food, medical care and shelter; and (4) ; and (4) the power to the power to consent to medical, psychiatric and consent to medical, psychiatric and surgical treatmentsurgical treatment other than the in-patient other than the in-patient commitment of the Ward.commitment of the Ward.



Guardianship of the Estate TPC 768Guardianship of the Estate TPC 768 The Guardian of the Estate of the Ward The Guardian of the Estate of the Ward

is entitled to the is entitled to the possessionpossession and and managementmanagement of of all property belonging all property belonging to the Wardto the Ward, to , to collect all debts, rentalscollect all debts, rentals or or claimsclaims that are due to the Ward to that are due to the Ward to enforce all obligationsenforce all obligations in favor of the in favor of the Ward.Ward.



The Cast:The Cast: Aunt Bea – Proposed Ward/ WardAunt Bea – Proposed Ward/ Ward Andy – Applicant/ Proposed GuardianAndy – Applicant/ Proposed Guardian Goober – Attorney Ad LitemGoober – Attorney Ad Litem Barney – Guardian Ad LitemBarney – Guardian Ad Litem Opie – Competing Applicant for Opie – Competing Applicant for

GuardianGuardian Floyd – Guardian of the EstateFloyd – Guardian of the Estate


How is Guardianship How is Guardianship Created?Created?

Aunt Bea is having Aunt Bea is having trouble rememberingtrouble remembering

where she is and who Andy and Opie are.where she is and who Andy and Opie are.

Her doctor has diagnosed her withHer doctor has diagnosed her with

Alzheimer’s DiseaseAlzheimer’s Disease. The doctor tells . The doctor tells AndyAndy

that things are going to get worse.that things are going to get worse.

Unfortunately, Aunt Bea Unfortunately, Aunt Bea does not havedoes not have

a financial or medical a financial or medical power of attorneypower of attorney. .


How is a Guardianship How is a Guardianship Created?Created?

Andy calls his lawyer to see what he shouldAndy calls his lawyer to see what he shoulddo. The lawyer asks Andy if Aunt Bea hasdo. The lawyer asks Andy if Aunt Bea hasexecuted any powers of attorney. She has not.executed any powers of attorney. She has not.The lawyer asks Andy about Aunt Bea’s finances.The lawyer asks Andy about Aunt Bea’s finances.She has She has $100,000$100,000 in a savings account, a 4 year in a savings account, a 4 yearold car worth old car worth $10,000$10,000 (that she still wants to (that she still wants todrive), a drive), a $25,000$25,000 CD and she receives $800 a CD and she receives $800 amonth in social security benefits. Aunt Bea needsmonth in social security benefits. Aunt Bea needsa Guardian of her person and her estate. a Guardian of her person and her estate.



The lawyer gives Andy a The lawyer gives Andy a Doctor’s Doctor’s Form LetterForm Letter and tells him to take and tells him to take Aunt Bea back to the doctor and Aunt Bea back to the doctor and have him complete the form. have him complete the form. C:\Documents and Settings\Jack\Desktop\Website\3rd Page - Doctors Form C:\Documents and Settings\Jack\Desktop\Website\3rd Page - Doctors Form Letter.docLetter.doc

After the doctor completes the form, After the doctor completes the form, the lawyer files the form letter and the lawyer files the form letter and an an Application for GuardianshipApplication for Guardianship with with the Probate Court. the Probate Court. Fake Application for Fake Application for Guardianship.docGuardianship.doc



Doctor’s EvaluationDoctor’s Evaluation ApplicationApplication Service of ProcessService of Process Posted NoticePosted Notice Notice to Family and Caregivers Notice to Family and Caregivers

Section 633Section 633



Appointment of Attorney Ad LitemAppointment of Attorney Ad Litem Represents the Proposed WardRepresents the Proposed Ward

Appointment of Guardian Ad Litem if Appointment of Guardian Ad Litem if necessarynecessary Represents the best interests of the Represents the best interests of the

Proposed WardProposed Ward Appointment of Court InvestigatorAppointment of Court Investigator

Investigates the necessity for Investigates the necessity for GuardianshipGuardianship



HearingHearing Testimony of Doctor (or waiver)Testimony of Doctor (or waiver) Testimony of ApplicantTestimony of Applicant Report of Attorney Ad LitemReport of Attorney Ad Litem Report of Court InvestigatorReport of Court Investigator Finding of IncapacityFinding of Incapacity Order Creating GuardianshipOrder Creating Guardianship


How does Guardianship How does Guardianship work?work?

Guardian of the PersonGuardian of the Person

Personal Surety BondPersonal Surety Bond Obtain Letters of Guardianship of the Obtain Letters of Guardianship of the

PersonPerson Make all decisions for powers granted Make all decisions for powers granted

in Orderin Order File Annual Report of Condition of WardFile Annual Report of Condition of Ward


How does Guardianship How does Guardianship work?work?

Guardianship of the EstateGuardianship of the Estate

File corporate surety bondFile corporate surety bond Obtain Letters of Guardianship of the EstateObtain Letters of Guardianship of the Estate Post Notice to Creditors in newspaper of Post Notice to Creditors in newspaper of

general circulationgeneral circulation File Inventory, Appraisement and List of File Inventory, Appraisement and List of

ClaimsClaims Manage assets and liabilities of WardManage assets and liabilities of Ward


Pros and Cons of Pros and Cons of GuardianshipGuardianship

ProsPros Protect incapacitated individuals from Protect incapacitated individuals from

exploitation or endangermentexploitation or endangerment Help incapacitated individuals manage Help incapacitated individuals manage

their lives and assetstheir lives and assets ConsCons

ExpenseExpense Possible Family StrifePossible Family Strife


Guardianship AlternativesGuardianship Alternatives

Statutory Durable Power of AttorneyStatutory Durable Power of Attorney Medical Power of AttorneyMedical Power of Attorney TrustsTrusts


Tales from the FrontTales from the Front