IV.  LIMITING THE EFFECT OF THE GUARDIANSHIP

30. Pre-Need Designation of Guardian - For one’s self
- An adult with capacity may, by written declaration
designate those persons whom the declarant wishes to
serve as guardian of the person or of the estate of the
declarant in the event of later incapacity. The
declaration may be holographic (NEW!) or attested to
by two witnesses, age 14 years of age or older and
who are not designees to be guardian and a self-
proving affidavit should be executed and attached.  
Perhaps more importantly , the declarant may also
indicate those persons who are to be specifically
disqualified from serving as guardian, either of the
person or estate, and such a disqualification is binding
on the court.  

31.  Pre-Need Designation of Guardian by Parent -
Similarly, a parent may designate, either in by separate
written declaration or in the parent’s will, those persons
(in preferential order) whom they desire to be guardian
of the person and/or estate of their child or children.  
The designation may specify that the court waive bond
as to a guardian of the person, but not as to a guardian
of the estate This designation may be for either minor
children or for adult incapacitated children. (NEW!)
Like the designation for one’s self, the designation for
a child may be holographic or self-proven.

32.Pre-Need Declaration for Mental Health Treatment
An adult with capacity may, by written declaration,
indicate the declarant’s preferences or instructions for
mental health treatment, including the right to refuse
such treatment.  Such a declaration is effective on
execution and expires on the third anniversary of its
execution or when revoked, whichever is earlier.  The
declaration is to be witnessed by two qualified
witnesses (similar to the Advanced Directive
witness qualifications).  Physicians or other health care
provider are to follow such declaration, however, as
long as the declarant is capable for giving informed
consent, such informed consent is to be sought.  

The designation does not apply if the declarant is
under a temporary or extended commitment and
treatment is authorized under the Mental
Health Code or in the case of an emergency when the
declarant’s instructions have not been effective in
reducing the severity of the behavior that has caused
the emergency.

33. Safekeeping or "Freeze" Agreements - Where the
personal representative deposits estate cash or other
assets in a state or national bank, trust company,
savings and loan association, or other domestic
corporate depository, to be held under an agreement
that the depository will not allow withdrawal or transfer
of the principal of the assets and/or interest on the
deposit except on written court order. The amount of
the bond of the personal representative may then be
reduced in proportion to the cash or other assets
placed in safekeeping.

34. Restoration of Ward - A guardian ad litem must be
appointed and everyone noticed similar to the original
grant of guardianship.

35. Annual Determination -  Each year , the probate
judge is required to review each guardianship file
created after September 1, 1993,and may review
annually any other guardianship files to determine
whether the guardianship should be continued,
modified, or terminated.   

This provision appears fairly innocuous, but is in reality
very powerful.  It was used in a very large guardianship
with massive pending litigation to restore the ward’s
capacity and terminate the guardianship.  Because the
standards for the court are somewhat of a blank slate
(i.e. discretionary), especially in courts other than
statutory probate courts, this provision could be
employed in a number of creative ways.   

36.Emancipation of Minor Ward - §31.01ff, Family
Code - Where a minor who is over 16, self-supporting
(or married) and living apart from parents, a
conservator or guardian may ask the court to legally
remove the disabilities of minority for either limited or
general purposes.  The petition is decided on a “best
interest” standard and the order is to specify whether
the removal of disabilities is limited or general in scope
and the purposes for which disabilities are removed.

37. Enumeration of Powers in Guardianship   If the
guardianship is to be a plenary guardianship, it is
perhaps best to simply reflect in the order that  “The
guardian is to be granted all power and authority
allowed under Texas law and the rights of the ward are
limited to the extent not inconsistent therewith.”  
Otherwise, attempting to cover everything by an
exhaustive listing may leave the guardian with specific
deficits.  Some attorneys feel
that a listing of eight or ten powers is complete, while
others can go on for pages.

However, if the ward is partially capacitated, a careful
enumeration of those areas in which the ward’s rights
are not to be limited can have a great effect on the
ward’s functioning ability and self-esteem.

38. Negligible Estate  when the ward’s estate is
exhausted or when the foreseeable income accruing to
a ward or his estate is so negligible that maintaining
the guardianship would be a burden, the court may
authorize the income to be paid to a parent or other
person acting as guardian, to assist as far as possible
in the maintenance of the ward, and without any liability
for future accountings as to the income.  

39. Minor Ward’s Estate < $100,000   Unlike the adult
ward’s estate, which is needed for the upkeep and
maintenance of the ward, a minor ward’s guardianship
estate is less likely to be called upon for day-to-day
living expenses.  If the guardian of the estate is a
parent of the ward, the court is usually going to want to
see some proof that the guardian/parent cannot make
the expenditures out of his/her own pocket rather than
out of guardianship assets.  The mindset here is more
of asset preservation and maybe some college
planning, assuming of course that the minor ward has
no special needs to deplete the estate.  If the estate
cash falls below $100,000 (up from $50,000 in 2001),
the guardianship of the estate may be closed and the
remaining funds paid into the court registry.

Withdrawals are then possible.

40. Family Settlement Agreements A Family Settlement
Agreement to implement a negotiated resolution to
existing disputes and/or to alter existing financial
arrangements.

41. Mother Nature and Father Time It is not unusual -
once a person gets adequate nutrition/ hydration/
socialization / therapy/ medication for a few weeks or
months - for many symptoms of delirium/ confusion/
diabetic conditions to clear up. In some instances, it is
a question of employing successive alternatives in an
effort to forestay the inevitable, whether a
guardianship or death.

By the same token, it is rarely in the best interest of a
terminally-ill proposed ward to go through successive
independent medical examinations and for extensive
litigation to exhaust an already beleaguered estate,
only to have the ward die the day after letters are
granted.
Here is some excellent
information on alternatives to
guardianship.  This is to aid
you in the process and
educate you in your choice of
attorney.  It is not specific
legal advice and will not, by
itself, constitute an attorney /
client relationship.  

Special thanks to Judge King
in the first Tarrant County
Probate Court, on whose
material this is largely based.

Avoiding Guardianship of
the person

Advanced Medical Directives

Avoiding a Guardianship of
the Estate

Limiting the Effect of the
Guardianship
Law Office of Eric J. Smith
1008 North Davis
Arlington, Texas 76012
ph: 817-860-2800
fax: 817-860-2801
eric@midcitieslaw.com
Copyright  2007-2017 Eric J. Smith All rights reserved.