Duties of Guardian of the Person
INTRODUCTION:
You have been appointed by this Court as guardian to represent the interests of the Ward. This is a fiduciary position which carries with it certain duties and a high degree of responsibility. Your activities are strictly regulated by the Texas Estates Code and you should familiarize yourself with the types of allowable actions you may take before engaging in any transactions. If you have any questions, you should consult with your attorney. This guide has been prepared as a supplement to the information given to you by your attorney and is not a substitute for legal advice.
YOUR QUALIFICATION:
Your authority to act on behalf of the Ward does not begin until you have met the statutory qualifications and receive letters of guardianship. You must first take the oath of office and execute a bond in the amount set by the Court. (Texas Estates Code Section 1105.002) The bond and oath must be executed and approved by the Court within 20 days from the date of the order of your appointment as guardian. (Texas Estates Code Section 1105.003, 1105.052) The Court can revoke the appointment of a guardian who fails to qualify within the time period prescribed by law. (Texas Estates Code Sections 1105.003, 1105.052, 1105.111,1105.103 and 1203.051) Your attorney will be able to direct you to an appropriate bonding company.
LETTERS OF GUARDIANSHIP:
After the Court has approved your oath and bond, the clerk of the court is authorized to issue letter of guardianship to you. You may call the County Clerk at (361)361-9350 to request issuance of letters. There is a charge of $2.00 for each letter. These letters serve as evidence to third parties of your authority to act on the Ward’s behalf. Letters of guardianship expire one year and four(4) months after the date or issuance unless renewed. Letters may only be renewed and reissued by the clerk of the Court on the receipt and approval by the Court or the guardian’s ANNUAL ACCOUNT. (Texas Estates Code Section 1106.001)
YOUR POWERS AND DUTIES:
Your specific powers and duties are set out in the order appointing you Guardian. Generally, the Guardian of the person is entitled to the charge and control of the person of the Ward and the duties of the guardian correspond with the rights of the guardian. A guardian of the person has:
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, medical care, and shelter; and
4. The power to consent to medical, psychiatric, and surgical treatment other than the in-patient psychiatric commitment of the Ward. (Texas Estates Code Section 1151.051)
SUPPORT AND MAINTENANCE OF ADULT WARDS WHEN THERE IS AN ESTATE:
When different persons have the guardianship of the person and estate of a Ward, the guardian of the estate shall pay to the guardian of the person a sum that is set by the Court at a specified time for the Ward's education and maintenance. The Guardian may be required to reimburse the estate for any improper expenditures. (Texas Estates Code Section 1165.001)
ANNUAL REPORT OF THE PERSON:
A Guardian with powers over the Person must complete a sworn ANNUAL REPORT OF THE PERSON 12 months from the date of qualification as guardian, and annually thereafter, containing statutorily required specific information and file it with the clerk of the Court while the guardianship of the Ward remains open. (Texas Estates Code Section 1163.101, 1163.103)
In addition, when there is a separate guardian of the estate, the Guardian of the Person shall file with the Court a sworn account of all receipts and disbursements that have occurred for the support and maintenance of the ward, and the education of the ward when necessary, during the year. (Texas Estates Code Section 1163.101)
CLOSING THE WARD'S ESTATE/DUTIES OF THE GUARDIAN OF THE PERSON:
If you are the Guardian of the Person of a minor, you must institute the procedure to close the minor's estate as soon as the Ward reaches eighteen (18) years of age, or the minor's disabilities of minority have been removed according to the law of this state, or the minor marries. If you are the Guardian of an incapacitated adult, you must institute the procedure to close the Guardianship when the Ward's mental capacity has been restored by order of the Court, or the Ward dies, or for any other reason that the Court determines.
Duties of the Guardian of the Estate
INTRODUCTION:
You have been appointed by this Court as guardian to represent the interests of the Ward. This is a fiduciary position which carries with it certain duties and a high degree of responsibility. Your activities are strictly regulated by the Texas Estates Code and you should familiarize yourself with the types of allowable actions you may take before engaging in any transactions. If you have any questions, you should consult with your attorney. This guide has been prepared as a supplement to the information given to you by your attorney and is not a substitute for legal advice.
YOUR QUALIFICATION:
Your authority to act on behalf of the Ward does not begin until you have met the statutory qualifications and receive letters of guardianship. You must first take the oath of office and execute a bond in the amount set by the Court. (Texas Estates Code Section 1105.002) The bond and oath must be executed and approved by the Court within 20 days from the date of the order of your appointment as guardian. (Texas Estates Code Section 1105.051) The Court can revoke the appointment of a guardian who fails to qualify within the time period prescribed by law. (Texas Estates Code Sections 1105.051, 1105.111,1105.103 and 1203.051 Your attorney will be able to direct you to an appropriate bonding company.
LETTERS OF GUARDIANSHIP:
After the Court has approved your oath and bond, the clerk of the court is authorized to issue letter of guardianship to you. You may call the County Clerk at (361)361-9350 to request issuance of letters. There is a charge of $2.00 for each letter. These letters serve as evidence to third parties of your authority to act on the Ward’s behalf. Letters of guardianship expire one year and four(4) months after the date or issuance unless renewed. Letters may only be renewed and reissued by the clerk of the Court on the receipt and approval by the Court or the guardian’s ANNUAL ACCOUNT. (Texas Estates Code Section 1106.001)
YOUR POWERS AND DUTIES:
Your powers and duties are set out in the order appointing you Guardian. If you are granted full powers, or the authority to manage assets, once you have qualified it is your duty to take possession of all property belonging to the Ward. (Texas Estates Code Section 1151.152) The Guardian of the estate 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 that are due to the Ward, and to bring and defend suits by or against the Ward. (Texas Estates Code Section 1151.101; 1151.151). The Guardian of both the Person and Estate has all the rights and powers and duties of the Guardian of the Person and of the Guardian of the Estate.
All such property of the Ward should remain in the State of Texas unless prior Court approval is obtained. Any cash you receive for the Ward should be placed in a bank account in the name of the Guardianship (e.g. Jane Doe, as Guardian of the Este of John Doe) separate from you personal funds. Do not mix the funds of the estate with your personal funds. You must have prior Court approval before selling any property belonging to the Ward. This is a complicated procedure and almost certainly will require the advice of an attorney. There are certain situations in which the Guardian may borrow money on behalf of the estate or rent property belonging to the estate, however, this also requires prior Court approval. The Estates Code is very restrictive as to the type of investments, which may be made with the Ward’s funds. If you wish to invest the money in anything other than a federally insured bank account, check with your attorney before making any such investment, as prior Court approval may be necessary.
INVESTMENTS:
The Texas Estates Code sets out the types of investments that a guardian is allowed to make with a Ward’s monies without prior Court approval. It is a very limited list as the legislature had only one thing in mind with passage of the regulations – the security and safety of the estate of the Ward. Monies of the Ward can only be placed in savings and banking institutions that are insured by the federal government or invested in bonds and other obligations of the federal, state, or local governments. Mutual funds, stocks, bonds of private companies, ready assets or any similar type of investment with brokerage firms are not authorized investments and placing estate funds in these is a violation of your oath and could cause your removal as guardian.
NOTICE TO CREDITORS IN A WARD'S ESTATE:
Within one (1) month after you have qualified (taken the oath and given the bond as explained above), you must publish a notice to creditors in a newspaper printed in the county advising any unsecured creditors of your appointment. (Texas Estates Code Section 1153.001) Within four (4) months., you must send a registered letter, return receipt requested, to each secured creditor, and unsecured creditor, if known, of the estate. Proof of the above two notices must be filed among the papers of the estate. (Texas Estates Code Section 1153.003) A secured creditor is one which holds a claim secured by a deed of trust, mortgage, or other lien upon property.
INVENTORY:
Not later than the 30th day after the date the guardian of the estate qualifies as guardian, unless a longer time is granted by the court, the guardian of the estate shall file with the clerk of the court a verified, full, and detailed inventory, in one written instrument, of all the property of the ward that has come into the guardian's possession or knowledge. The inventory filed by the guardian under this section must include all real property of the ward that is located in this state; and all personal property of the ward wherever located. The court for good cause shown may require the filing of the inventory and appraisement at a time not later than the 30th day after the date of qualification of the guardian (Texas Estates Code Section 1154.051).
SUPPORT AND MAINTENANCE OF MINOR WARDS:
If you are the natural parent of the Ward and can provide for the Ward's support, you will not be allowed to use any of the estate funds for the Ward's support and maintenance. But, if you, as parent and guardian, can satisfy the Court by clear and convincing evidence that you are unable to support your child or children without unreasonable hardship you may be allowed to expend funds of the estate for the Ward's benefit. This will require prior Court approval and a hearing on this matter may be necessary. (Texas Estates Code Section 1156.051) If you are not a parent of the Ward, you will follow the procedures set out below for ADULT WARDS.
SUPPORT AND MAINTENANCE OF ADULT WARDS:
The income of the Ward may be used for the support and maintenance of the Ward without prior Court approval. However, you must account for all such expenditures in the annual accounting, and you may be required to reimburse the estate for any improper expenditures. If the income of the estate is insufficient to provide for the Ward's support, you may apply to the Court for permission to expend the corpus of the estate. The application must state specifically the amount of money requested and the purposes for which the funds will be spent. It is also possible to get an order allowing you so spend a certain sum each month as an allowance for the Ward's support and maintenance. The size of the allowance will depend upon the needs of the Ward, the size of the estate, and the amount of other funds available for the Ward's support. Any funds expended by the guardian must be included in the annual accounting. (Texas Estates Code Section 1156.001)
VETERAN'S BENEFITS:
If your Ward is a beneficiary of the Veteran's Administration, you must submit any applications to expend or invest funds, all claims, and accountings to their office prior to submission to the Court. If the Veteran's Administration wishes to approve your request or account, they will execute a “waiver of hearing" so that it can be processed by the Court. No instruments can be processed by this Court without this waiver where the Ward is a recipient of Veteran's Administration funds. (Texas Estates Code Section 1151.301)
CLAIMS:
Claims of creditors against the estate may be presented to you at any time while the Estate remains open. You may allow any claim which you feel is a just debt of the estate and is properly presented to you and authenticated, provided such claim is not barred by the statute of limitations. (Texas Estates Code Section 1157.001, 1157.060) (If you have any doubts or questions in this situation, contact your attorney.) It is important to know that once a claims is presented to you, you must either allow or disallow the claim, in whole or in part, within 30 days or it will be rejected by operation of law. If this occurs, the creditor will have to file suit to secure payment of the claim. If the claim is found to be a just one, then you will be personally liable for the cost of this suit and you may even be removed from office for your failure to properly act upon this claim. Once you have allowed a claim, it will then be presented to the Court for approval or disapproval. In order to pay debts owed by the estate, you must obtain Court permission by first submitting to the Court an application. (Texas Estates Code Sections 1157.051 and 1157.052)
ANNUAL ACCOUNT:
Not later than the sixtieth (60th) day after the expiration of twelve (12) months after the filing of your bond and oath, you must file with the Court an Annual Account, attaching a sworn affidavit stating that it is true and correct, that you have paid the bond premium for the next accounting period, filed all tax returns and paid all taxes due, with the date, amount paid, and name of the governmental entity to whom the taxes were paid. If you handle assets, the Annual Account must show all receipts and disbursements that have occurred in the estate during the year. You must show the status of all claims pending against the estate and the nature and extent of all property currently being administered by you. Any cash or securities in your possession or held by any bank or depository must be verified by an appropriate letter or certificate. The bank statement dated on the ending date of the accounting period will suffice for bank accounts. (Texas Estates Code Section 1163.001) After the accounting has been on file for 10 days it will be reviewed and audited by the Court. If it is found to be in proper form, an order approving the account will be entered. You must file an Annual Account every twelve months thereafter while the Ward's estate remains open. (Texas Estates Code Section 1163.051)