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Www.jackwilburn.com Guardianship: Do you know the secret?

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Presentation on theme: "Www.jackwilburn.com Guardianship: Do you know the secret?"— Presentation transcript:

1 Guardianship: Do you know the secret?

2 Overview 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 Guardianship Pros and Cons of Guardianship Guardianship Alternatives Guardianship Alternatives Tales from the Front Tales from the Front

3 What is Guardianship? Simply put, Guardianship law is a system to protect the rights and liberties of those who cannot protect or care for themselves. Simply put, Guardianship law is a system to protect the rights and liberties of those who cannot protect or care for themselves. Guardianship law is found in Sections 600 – 905 in the Texas Probate Code (TPC) and relevant case law Guardianship law is found in Sections 600 – 905 in the Texas Probate Code (TPC) and relevant case law Guardianship is like probate for the living Guardianship is like probate for the living Who needs a Guardianship? Who needs a Guardianship? Incapacitated Incapacitated Minor Minor Two types of Guardianship Two types of Guardianship Guardianship of the Person Guardianship of the Person Guardianship of the Estate Guardianship of the Estate

4 What is Guardianship? What is Incapacity? TPC 601 What is Incapacity? TPC 601 A Minor – a person under 18 who has never been married or had the disabilities of minority removed; A Minor – a person under 18 who has never been married or had the disabilities of minority removed; An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; or An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; or A person who must have a guardian appointed to receive funds due the person from any governmental source. A person who must have a guardian appointed to receive funds due the person from any governmental source.

5 What is Guardianship? Guardianship of the Person TPC 767 Guardianship of the Person TPC 767 The Guardian of the Person is entitled to the charge and control of the Ward including (1) the right to have physical possession of the Ward and to establish the Ward’s legal domicile; (2) the duty of care, control and protection of the Ward; (3) the duty to provide the Ward with clothing, food, medical care and shelter; and (4) the power to consent to medical, psychiatric and surgical treatment other than the in- patient commitment of the Ward. The Guardian of the Person is entitled to the charge and control of the Ward including (1) the right to have physical possession of the Ward and to establish the Ward’s legal domicile; (2) the duty of care, control and protection of the Ward; (3) the duty to provide the Ward with clothing, food, medical care and shelter; and (4) the power to consent to medical, psychiatric and surgical treatment other than the in- patient commitment of the Ward.

6 What is Guardianship? Guardianship of the Estate TPC 768 Guardianship of the Estate TPC 768 The Guardian of the Estate of the Ward is entitled to the possession and management of all property belonging to the Ward, to collect all debts, rentals or claims that are due to the Ward to enforce all obligations in favor of the Ward. The Guardian of the Estate of the Ward is entitled to the possession and management of all property belonging to the Ward, to collect all debts, rentals or claims that are due to the Ward to enforce all obligations in favor of the Ward.

7 What is Guardianship? The Cast: The Cast: Aunt Bea – Proposed Ward/ Ward Aunt Bea – Proposed Ward/ Ward Andy – Applicant/ Proposed Guardian Andy – Applicant/ Proposed Guardian Goober – Attorney Ad Litem Goober – Attorney Ad Litem Barney – Guardian Ad Litem Barney – Guardian Ad Litem Opie – Competing Applicant for Guardian Opie – Competing Applicant for Guardian Floyd – Guardian of the Estate Floyd – Guardian of the Estate

8 How is Guardianship Created? Aunt Bea is having trouble remembering where she is and who Andy and Opie are. Her doctor has diagnosed her with Alzheimer’s Disease. The doctor tells Andy that things are going to get worse. Unfortunately, Aunt Bea does not have a financial or medical power of attorney.

9 How is a Guardianship Created? Andy calls his lawyer to see what he should do. The lawyer asks Andy if Aunt Bea has executed any powers of attorney. She has not. The lawyer asks Andy about Aunt Bea’s finances. She has $100,000 in a savings account, a 4 year old car worth $10,000 (that she still wants to drive), a $25,000 CD and she receives $800 a month in social security benefits. Aunt Bea needs a Guardian of her person and her estate.

10 How is a Guardianship Created? The lawyer gives Andy a Doctor’s Form Letter and tells him to take Aunt Bea back to the doctor and have him complete the form. C:\Documents and Settings\Jack\Desktop\Website\3rd Page - Doctors Form Letter.doc The lawyer gives Andy a Doctor’s Form Letter and tells him to take Aunt Bea back to the doctor and have him complete the form. C:\Documents and Settings\Jack\Desktop\Website\3rd Page - Doctors Form Letter.doc C:\Documents and Settings\Jack\Desktop\Website\3rd Page - Doctors Form Letter.doc C:\Documents and Settings\Jack\Desktop\Website\3rd Page - Doctors Form Letter.doc After the doctor completes the form, the lawyer files the form letter and an Application for Guardianship with the Probate Court. Fake Application for Guardianship.doc After the doctor completes the form, the lawyer files the form letter and an Application for Guardianship with the Probate Court. Fake Application for Guardianship.doc Fake Application for Guardianship.doc Fake Application for Guardianship.doc

11 How is a Guardianship Created? Doctor’s Evaluation Doctor’s Evaluation Application Application Service of Process Service of Process Posted Notice Posted Notice Notice to Family and Caregivers Section 633 Notice to Family and Caregivers Section 633

12 How is Guardianship Created? Appointment of Attorney Ad Litem Appointment of Attorney Ad Litem Represents the Proposed Ward Represents the Proposed Ward Appointment of Guardian Ad Litem if necessary Appointment of Guardian Ad Litem if necessary Represents the best interests of the Proposed Ward Represents the best interests of the Proposed Ward Appointment of Court Investigator Appointment of Court Investigator Investigates the necessity for Guardianship Investigates the necessity for Guardianship

13 How is Guardianship Created? Hearing Hearing Testimony of Doctor (or waiver) Testimony of Doctor (or waiver) Testimony of Applicant Testimony of Applicant Report of Attorney Ad Litem Report of Attorney Ad Litem Report of Court Investigator Report of Court Investigator Finding of Incapacity Finding of Incapacity Order Creating Guardianship Order Creating Guardianship

14 How does Guardianship work? Guardian of the Person Guardian of the Person Personal Surety Bond Personal Surety Bond Obtain Letters of Guardianship of the Person Obtain Letters of Guardianship of the Person Make all decisions for powers granted in Order Make all decisions for powers granted in Order File Annual Report of Condition of Ward File Annual Report of Condition of Ward

15 How does Guardianship work? Guardianship of the Estate Guardianship of the Estate File corporate surety bond File corporate surety bond Obtain Letters of Guardianship of the Estate Obtain Letters of Guardianship of the Estate Post Notice to Creditors in newspaper of general circulation Post Notice to Creditors in newspaper of general circulation File Inventory, Appraisement and List of Claims File Inventory, Appraisement and List of Claims Manage assets and liabilities of Ward Manage assets and liabilities of Ward

16 Pros and Cons of Guardianship Pros Pros Protect incapacitated individuals from exploitation or endangerment Protect incapacitated individuals from exploitation or endangerment Help incapacitated individuals manage their lives and assets Help incapacitated individuals manage their lives and assets Cons Cons Expense Expense Possible Family Strife Possible Family Strife

17 Guardianship Alternatives Statutory Durable Power of Attorney Statutory Durable Power of Attorney Medical Power of Attorney Medical Power of Attorney Trusts Trusts

18 Tales from the Front


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