Guardianship

Question 1

Appointment

Answer 1

• if parents live together, both are natural guardians of the person of a child, & 1 is entitled to be appointed guardian of child’s estate
• if parents can’t agree, ct must make appointment based on which parent is better qualified to serve as guardian of child’s estate
• if 1 parent deceased, survivor is natural guardian of the person of a child & entitled to be appointed guardian of child’s estate
• surviving parent of a minor may, by will or written declaration, appoint any eligible person to be guardian of the person of a minor after parent’s death or in event of parent’s incapacity

Question 2

Court Appointed Guardian

Answer 2

After surviving parent’s death or if ct finds surviving parent to be incapacitated, ct shall appoint the person designated in will or declaration to serve as guardian of minor in preference to those otherwise entitled to serve, unless ct finds designated guardian is disqualified, dead, refuses to serve, or wouldn’t serve best interests of minor.

Question 3

Qualifications

Answer 3

May not if:

• a minor
• person whose conduct is notoriously bad
• incapacitated person
• person who is a party or whose parent is a party to a lawsuit concerning or affecting welfare of proposed ward (unless ct makes certain findings)
• person indebted to proposed ward (unless person pays debt before appointment)
• person asserting a claim adverse to proposed ward or his property interests
• person who, b/c of inexperience, lack of education, or other good reason, is incapable of managing proposed ward &/or his estate
• person, institution, or corporation found unsuitable by ct
• person disqualified by declaration made by proposed ward while not incapacitated
• nonresident who hasn’t filed w/ ct name of a resident agent for service of process

Question 4

Temporary Guardianship

Answer 4

When temporary guardian files required oath & bond, ct order appointing guardian takes effect w/o necessity of letter of guardianship. Order itself is evidence of guardian’s authority to act.
- all provisions Probate Code relating to guardianship of persons & estates of incapacitated persons apply to temporary guardianship as applicable.

Question 5

Qualified Guardian

Answer 5

1) adult
2) generally competent
3) of good character
4) not owe debt to ward
5) not involved in lawsuit w/ ward

Question 6

Guardian of the Person

Answer 6

Concerns care & control of ward (health & well being)

Question 7

Guardian of the Estate

Answer 7

Concerns management of real & personal property

Question 8

Procedure

Answer 8

1) Ct must find by clear & convincing evidence that ward is incapacitated & it is in the ward’s best interests to have a guardian appointed
2) Ct must find by preponderance of the evidence that person selected to be appointed guardian is properly qualified
3) Guardian must post a bond for the protection of the estate

Question 9

Pre-Incapactiy Designation

Answer 9

Any person, who at the time is not incapacitated, can make their own designation, & is usually upheld unless ct finds not in best interests of ward. To be valid, such declaration must be entirely in ward’s own handwriting, or declaration must be signed by ward & witnessed.