Powers and Duties of Guardian
Guardian of the Estate
A Guardian of an Estate is appointed by the court to handle the ward’s estate or everything the ward owns or has a right to receive, including but not limited to: personal property, real property, money, bank accounts, furniture, cars, clothes, and legal claims resulting from personal injury or other wrongdoing. Under Texas law, the Guardian of the Estate with full authority has the rights, restrictions, and duties set out below:
Take Possession of Estate Assets
The guardian must take possession of and protect all of the ward’s property, manage all property, collect all debts, rentals, or claims that favor the ward, enforce all obligations that favor the ward, and bring and defend suits by or against the ward. The guardian must also publish a notice in a newspaper printed in the county where the Letters of Guardianship were issued calling on any person who has a claim against the estate to present the claim within the permitted period. In addition, the guardian is entitled access to the ward’s digital assets.
Exercise Good Judgment, Good Faith, and Diligence
Guardians serve as fiduciaries and must take care of the ward’s estate even more carefully than he would his own. A Guardian of an Estate must be conservative, thrifty, and cautious when handling the assets of the ward. They should always act in good faith and be mindful of the interests of others who may have a stake in or claim to the assets under management.
Avoid Co-Mingling of Assets
Guardians must separate the ward’s property from their own property. All funds in a guardianship estate must be placed in separate, insured accounts in the name of the guardianship estate, i.e.: Mike Smith, Guardian of the Estate of Sally Smith, an Incapacitated Person.
Work With the Courts
If the court ordered an allowance, no further court approval is necessary before spending funds for purposes that were approved by court order. Never spend any guardianship funds beyond the allowance without first obtaining, through an attorney, a written order of the court authorizing such expenditures. If a Guardian of the Estate makes expenditures for purposes not approved by the court, they may be subject to removal and held personally liable for any deficiencies. It is also the responsibility of the guardian that all required notices and documents are filed timely with the court.
Insurance and Cash Deposits
Insurance must be obtained and maintained to cover all property of the ward whenever the estate has the ability to pay the premiums. All cash deposits must be within the limits of FDIC/NCUA coverage, or no more than $250,000.00 per depository.
With respect to non-cash assets, such as real property or personal effects, the guardian has a duty to protect, preserve, and insure all non-cash assets of the estate. The attorney, on the guardian’s behalf, must obtain a written order of the court before attempting to sell, transfer, lease for more than a year, abandon, or otherwise dispose of any non-cash assets of the estate. All personal property of the ward in the State of Texas should remain in Texas unless prior court approval is obtained.
Guardian of the Person
Parents as Guardian of Minor Child’s Estate
Parents are obligated to support minor children with their own funds and they may not use assets of the guardianship estate without court order. If a parent satisfies the court by clear and convincing evidence that they are unable to support their child or children without unreasonable hardship, they may be allowed to expend funds of the estate for the use and benefit of the minor child. Such expenditures require prior court approval.
Scope of Authority
The Guardian of the Person is obligated to care for the ward’s physical, emotional, and educational needs. Under Texas law, a Guardian of the Person with full authority has the right to have possession of the ward and establish the ward’s residence. The guardian also accepts the duty to provide care, supervision, and protection for the ward as well as to provide them with food, clothing, medical care, and shelter. What is more, the guardian holds the power to consent to medical, psychiatric, and surgical treatment other than the inpatient psychiatric commitment of the ward. The guardian may establish a trust and direct that the income of the ward be placed in the trust for the purpose of obtaining eligibility for medical assistance.
In addition, the guardian has the authority to personally transport the ward or to direct the ward’s transport by emergency medical services to an inpatient mental health facility for a preliminary exam. The guardian must provide written notice immediately to the court of the filing of an Application for an Order of Protective Custody. If a guardian must place a ward in a more restrictive care facility, they again must provide notice of the placement to the court beforehand.
Finally, the guardian must inform those relatives who have elected in writing to receive notice when the ward: 1) dies; 2) is admitted to a care facility for three (3) days or more; 3) has a change of residence; 4) is staying somewhere other than the ward’s residence for a week or more.
Letters of Guardianship
Letters of Guardianship are good for one year and four months after the date of issuance and demonstrate authority to act as guardian. The residential placement facility, school, day program, and the ward’s doctors should have a copy of the Letters of Guardianship for their records. Letters of Guardianship must be renewed and reissued each year after the Annual Report is approved. Carefully read the order of appointment as guardian, as some of the rights of the ward may have been retained by the ward.
Texas law requires the Guardian of the Person to file a sworn or affirmed report each year that covers a twelve (12) month reporting period, with the reporting period beginning on the qualification date. Copies are not accepted. This form must be completed with original signatures and notary seals. The guardian must contact the court if the guardian or the ward moves to a new address. Failure to file the Annual Report will result in a Show Cause Order being issued, requiring the guardian to appear in court and explain why the guardian should not be removed. The guardian may file or mail the Annual Report with the required filing fee. Be aware that the filing fees must be paid by either a money order or cashier’s check. In the event that the Guardian of the Person is unable to pay the required filing fee, the court may waive this fee. However, if the Annual Report is not filed on time and an Order to Show Cause has been issued, filing fees will not be waived.