A court-appointed guardian is not always able to maintain control over an active ward, and in certain circumstances, a ward’s conduct results in criminal prosecution of the ward.
Unfortunately, the Estates Code, which governs guardianships, and the Criminal Code do not offer much room for interaction. In fact, even though a guardian in a probate matter is appointed to “step into the shoes” of the ward and handle almost anything the ward could normally do for himself or herself, the guardian’s power does not extend to a criminal action. The standard for mental capacity in the Estates Code is vastly different from the legal standard in a criminal action. Even though an individual can be a ward with full guardianship, he or she can still be subject to criminal prosecution.
A guardian whose ward has been arrested will likely have many questions and concerns once the ward is arrested, but the guardian’s best bet in such a circumstance is to get the ward a criminal attorney as soon as possible. The guardian probably will not be able to act on the ward’s behalf in the criminal action, including even obtaining basic information about the ward’s case and visiting the ward in jail.
Further problems arise when the ward’s incapacity is of such a degree that prevents the ward from placing the guardian’s name on a list of visitors or being able to telephone the guardian. The ward also will likely not know what medications he or she must take, and the jail probably will not be able to administer medication unless the guardian provides it.
Although the guardian’s powers in a criminal action are severely limited, the best option a guardian has to ensure that the ward receives adequate care and attention is to find an effective criminal attorney as soon as possible.
In a guardianship action for an incapacitated adult, there are many factors a court considers in the appointment of a guardian. A court must find that the person is not disqualified to serve as guardian. A few of the easier-to-determine factors for disqualification require that the proposed guardian:
- is over age 18;
- does not have a history of conduct that is not “notoriously bad” (felony convictions are a good indicator);
- has not been declared to be incapacitated himself;
- doesn’t have a certain lawsuit pending against the proposed ward;
- doesn’t owe the proposed ward any money;
- isn’t claiming that the proposed ward owes the guardian any money;
- is capable of properly and prudently managing and controlling the proposed ward and the estate;
- was not named as an individual not to serve as guardian in a declaration by the proposed ward when the proposed ward had capacity to execute such a declaration.
Additionally, a court must find the guardian to be “suitable.” The factors that determine suitability are often the subject of heated disputes both among family and in the probate court. Suitability hinges on many facts, including the proposed guardian’s criminal history and financial history, if a guardianship of the estate is sought.
When two or more suitable persons are seeking to be appointed as guardian, then the Texas Estates Code has a scheme of priority. The priority begins with the spouse of the proposed ward and then goes in order of the nearest relative.
In situations where there are two individuals who have the same priority, then the court must then determine which person among those who have the same priority is best qualified to serve as guardian. However, if there are two individuals and one of them is a more distant relative, then the statutory priority scheme can be useful. For example, if a proposed ward is not married but has both suitable children and suitable siblings, the proposed ward’s children would have priority to serve over the proposed ward’s siblings.
Edward L. Rice has been selected to make a continuing legal education presentation at the Tarrant County Bar Association’s Probate Litigation Seminar on September 19, 2014.
On May 21, 2014 Edward L. Rice and Dianne Reis made a joint continuing legal education presentation to the North Texas Estate Planning Council, entitled “Planning for Litigation Risks.”
The focus was upon:
- “Red Flag” risk factors inherent in family dynamics or client physical and mental health, and general precautions to reduce those risks;
- Likely litigation risks for particular estate planning strategies and weighing the risk against the need to use a particular strategy; and
- Alternative planning solutions to reduce specific risks.
The members of the audience were very engaged, participated actively in question-and-answer format during the presentation, and expressed great appreciation at the end of the presentation for the usefulness of the information provided to them.
Mark R. Caldwell has been selected to serve as the Moderator at this year’s Guardianship/Attorney ad-litem Certification CLE sponsored by the Dallas Volunteer Attorney Program to be held at the Belo Mansion on May 27, 2014.
A guardian of the estate or an estate administrator (such as an executor) is entitled to possess and manage all property that belongs to the ward (person who is legally incapacitated) or to the estate. A guardian or an administrator is called a fiduciary. Fiduciaries have a duty to care for the guardianship estate property and decedent’s estate property of others prudently and according to established legal standards. Those legal standards require the fiduciary to take control of all estate property.
Sometimes there are individuals who have control of estate property and refuse to give the property to the fiduciary. Because the fiduciary has the legal duty to take control of all estate property, the fiduciary is subject to legal action if he or she doesn’t take steps to collect the property.
One way for the fiduciary to take control of the estate property is through a motion for turnover order. A turnover order can offer a faster remedy than other options, since it does not require a different lawsuit first.
A turnover order can be especially useful in a circumstance where police officers have become involved, because the order should address that peace officers are entitled to enforce the turnover order and allow to fiduciary to enter estate property and remove personal property items.
The motion and the order should name the property to be removed with as much specificity as possible.
Serving as executor of an estate is both an honor and a significant undertaking, as it usually requires at least one court hearing, and what can be major work to value, distribute, and sometimes sell estate property as directed by a will and the law.
If you have an original will that has not yet been admitted to probate and you see that you are appointed executor in that will, the first thing you should do is contact a probate attorney who can file the will with the appropriate county. Texas law requires an executor to be represented by an attorney. Although this requirement might seem unfair, it often protects the estate beneficiaries from an executor who acts inappropriately or just doesn’t know the law.
In preparation to meet with your probate attorney, gather information that will be helpful, such as:
• Contact information for beneficiaries named in the will
• Bank statements for accounts that need to be transferred or accessed
• General information about personal property, such as whether there are any particular items of value
• Information about vehicles, including make, model, year, and VIN.
There are circumstances where an individual has carefully planned his or her estate, and it might not be necessary to probate the will in court. However, even if you and your probate attorney determine that the probate process is not necessary, you or your probate attorney should immediately deposit the will with the county clerk in the county that has jurisdiction over the matter (usually the county where the person resided at the time he or she passed away). Texas law requires someone who has the original will to deposit the will with the county, with severe penalties for those who fail to comply.
You can legally take very limited action with the property of the person who passed away until a court appoints you as independent executor. Under no circumstances should you give any property away or otherwise dispose of it. You should secure the property and lock the house. If you suspect someone might be using a bank account inappropriately, you should notify the bank of the death and give the bank a copy of the death certificate, so the bank can place a hold on the account, if possible. If you think any estate assets are subject to immediate harm, notify your probate attorney immediately.
The legal concepts involved in property passing upon someone’s death can stump even the most experienced probate attorneys. Creditors and estate beneficiaries in probate litigation launch fierce battles concerning who has a right to certain estate property.
Generally, when someone passes away (that person is called a “decedent”), property passes to the people named in the decedent’s will (the people who are to receive the property are called “beneficiaries”). But if the property that the beneficiaries are supposed to receive has a debt on it, disputes can arise concerning whether the beneficiary or the creditor has priority.
In Meekins v. Wosniski, a recent case out of the Houston Court of Appeals, a beneficiary sought to stop the sale of estate property that was to go to the beneficiary under the decedent’s will. However, the estate property was subject to outstanding property tax debt. The administrator of the estate attempted to sell the property to pay the taxes and other expenses that arose in the estate administration. The beneficiary argued that, because his right to receive estate property arose at the moment the decedent passed away, his right to receive the property should take priority over the tax debt. The appeals court ruled in favor of the creditor, holding that the beneficiary’s right to receive estate property was subject to the creditors and to the executor’s proper administration of the estate.
It happens more often than we like to imagine – your mom and dad are not able to make decisions for themselves, and a stranger befriends them and starts becoming increasingly involved in your parents’ lives, eventually gaining access to their home and bank accounts. Or sometimes an elderly neighbor unable to care for herself has no family and wanders outside constantly, needing someone to make emergency decisions for her health and safety.
In emergency situations like those above, Texas law allows for the creation of what is called a “temporary guardianship.” When a person’s health, safety, or property is in immediate danger, a court can appoint someone on a temporary basis who can protect that individual and/or the property in danger.
Temporary guardianships differ from traditional, “permanent” guardianships because they can be granted with less evidence than is needed for a permanent guardianship. Of course, in a temporary guardianship, the powers of the guardian are typically limited to those necessary to protect the person in danger; whereas a permanent guardian usually has significantly expanded powers over the individual’s person and property.
Temporary guardianships often are transitioned into permanent guardianships, depending on the needs of the individual involved. A temporary guardianship can be a helpful proceeding to protect someone in immediate danger.
In some situations, it is necessary to file a will for probate, but there may not always be a need to have a full estate administration. When people think of probate, they usually think of independent administration, where an executor, generally free of court control, must distribute estate property according to the terms of the will. There are less involved probate procedures, including muniment of title, small estate affidavit, and affidavits of heirship that may be available, depending on the facts of the case.
When someone passes away and leaves behind a surviving spouse or minor child and the value of the estate (not including the value of any homestead property) does not exceed a certain amount, it may be possible for the survivors to obtain an order of no administration.
If the surviving spouse or children qualify for a family allowance, they can petition to the court and ask for an order of no administration and ask the court to fix the family allowance. As long as the value of the property in the decedent’s estate does not exceed the amount of the family allowance, a court can issue an order of no administration.
If there are bank accounts or other property that requires administration, and the bank requires that an executor obtain letters testamentary, then an order of no administration is not appropriate. An order of no administration means that no one will receive letters testamentary.
The court can revoke the order of no administration within one year after it is entered if additional property has been discovered, and that property requires administration; property was omitted from the application for no administration; or the property included in the original application was valued too low.