Family Law

FREQUENTLY ASKED QUESTIONS ABOUT GUARDIANSHIPS

Posted by on Jun 27, 2014 in Elder Care Law, Family Law | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

Frequently Asked Questions About Guardianships

 The information in this column is not intended as legal advice but to provide a general understanding of the law. Some of the information in this column was prepared by the State Bar of Texas and is reprinted in this column with permission. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

 While I am an advocate for the use of a Power of Attorney to avoid guardianships, I realize there are times when a guardianship cannot be avoided. Therefore, in this week’s column I will address some of the more frequently asked questions regarding guardianships.

How does one go about initiating a guardianship?

Any interested party may file an application with the proper court requesting that a guardian be appointed for a person believed to be incapacitated.

 What is the definition of an incapacitated person?

A person may be found to be incapacitated if due to a mental or physical condition he or she is unable to: (1) provide food, clothing, or shelter for himself or herself; (2) care for his or her own physical needs, or (3) manage his or her own financial affairs. A finding of incapacity will allow the person to be placed under guardianship. A minor person (someone under 18 years of age) and missing persons are also considered to be incapacitated.

Once a guardian is appointed, does the incapacitated person lose all rights and powers?

Not necessarily. A judge may appoint a guardian for an incapacitated person, but limit the guardian’s powers so that all rights and powers except those granted to the guardian are retained by the incapacitated person.

 Who may serve as guardian?

The court will appoint a guardian for an incapacitated person in the following order of priority: (1) the incapacitated person’s spouse; (2) the person’s nearest kin; and (3) an eligible person who is best qualified to serve.

 Do the types of guardians vary?

Yes. Generally, there is a guardian of the person and a guardian of the estate. The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. The guardian of the estate has the duty and power to manage the incapacitated person’s financial affairs. One person can fill both positions.

 Who is not allowed to serve as guardian?

A person may not be appointed guardian if the person is a minor, a notoriously bad person, an incapacitated person, a person who is a party to a lawsuit affecting the incapacitated person (with some exceptions), a person who owed the incapacitated person money, unless it is repaid, a person with adverse claims to the incapacitated person or his property, an inexperienced or uneducated person, a person the court finds unsuitable, a person eliminated in a person’s designation of guardian, or a nonresident without a resident agent.

 Are there costs involved in a guardianship?

Yes. Obtaining a guardianship involves filing a lawsuit regarding a person’s rights and is therefore typically, very costly. These cost include attorney’s fees, filing fees, attorney ad litem fees, and bond premiums to be paid out of the incapacitated person’s estate.

What rights are retained by the incapacitated person?

The incapacitated person has the right to receive a copy of the application for guardianship and other documents filed with the County Clerk. He or she is also entitled to be at the hearing to determine whether he or she is incapacitated.

Is an alleged incapacitated person represented by an attorney?

Yes. When a guardianship is filed, the court appoints an attorney ad litem to represent the interests of the alleged incapacitated person. The person can also retain his or her own attorney.

What happens at a guardianship hearing?

The person who filed the application must prove the incapacity through testimony and medical evidence. The alleged incapacitated person has a right to bring his or her own witnesses to court and also the right to speak to the judge. The alleged incapacitated person may also request a jury trial. The judge or jury will determine if the person is incapacitated.

How soon can a guardianship hearing be held?

The earliest date to schedule a hearing is the Monday following the expiration of 10 days after the alleged incapacitated person has been personally served with the application of guardianship.

Upon appointment, how does a guardian qualify?

The guardian must file an oath and post a bond in the amount set by the court to insure proper performance of his or her duties.

Does the guardian have reporting requirements to the court?

Yes. The guardian of the estate must file an inventory within 30 days of qualifying. The inventory must list all assets of the incapacitated person coming into the guardian’s hands and all debts owed to the estate. The guardian of the estate must file an annual account to report all receipts and disbursements. The guardian of the person must file an annual report on the location, condition, and well-being of the incapacitated person.

What if there is an immediate need for the appointment of a guardian?

A temporary guardian can be appointed without notice to the proposed incapacitated person if his or her person or property is in imminent danger. Usually a temporary guardianship will not exceed sixty 60 days. However, if a permanent guardianship application has been filed and is contested or challenged, the court may appoint a temporary guardian to serve as temporary guardian until the contested guardianship action is resolved.

Does the person for whom a temporary guardianship has been appointed have any rights?

Since that person is not presumed to be incapacitated, he or she retains all rights and powers not granted to the temporary guardian. He or she is entitled to be served with a copy of the documents that are filed. The court must appoint an attorney to represent the alleged incapacitated person. The court must hold a hearing no later than ten 10 days after the date of filing the temporary guardianship to determine whether there is a need for continuation of the temporary guardianship.

Pursuing a guardianship for a loved one can be a difficult process, emotionally and legally. An attorney can assist you in determining if a guardianship is appropriate for your particular situation. If you have further questions or are considering a guardianship for a loved one, you should consult your attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

 

 

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EXCLUDED HEIRS MAY STILL INHERIT

Posted by on May 3, 2013 in Articles, Estate Planning, Family Law | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

 EXCLUDED HEIRS MAY STILL INHERIT

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

When Elizabeth was born out of wedlock in the 1950s, she was adopted soon afterwards by another family.  As a young adult, she located her birth mother and formed a long-lasting relationship with her. Elizabeth also discovered that, through her mother, she was related to the beneficiaries of a large fortune.  Two multimillion dollar trusts had been established to provide income to Elizabeth’s mother during her lifetime. The remaining principal was to go to her “descendants,” according to one trust, and to “each then living child of hers,” according to the other trust.

Following a long battle, a court has found that Elizabeth is entitled to share in the fortune, notwithstanding the argument by her mother’s other heirs that she was not her mother’s “child” or “descendant” because she had been adopted out of the family.  Looking at the applicable state law when the trusts were created, the court determined that, at such times, nonmarital children could be included as descendants or children of their biological parents for purposes of inheritance. There also was an overarching constitutional issue, as some courts have held that treating children born out of a marriage differently from marital children is a denial of equal protection of the law.

In Elizabeth’s case, the issue would have been more clear-cut in her favor had the trust instruments simply included her as a beneficiary, either by more inclusive language or by using her name. Of course, up to a point, the creator of a trust or Will has leeway in deciding which of his or her children to include as beneficiaries. But the law has been known to step in on behalf of children to achieve a measure of justice and fairness.

A case in point, concerned the estate of Anna Nicole Smith.  In her Will, Smith left all of her estate, which could have been greatly enhanced by many millions of dollars from her late husband’s assets, to her son, but that is another story.  Only months before both Smith and her son died, she gave birth to a daughter. Whether the omission of any future children from Smith’s Will was intentional or merely a drafting error, it is probable that Smith’s daughter will inherit the estate.

Under the “omitted child” doctrine followed by a majority of courts, when a parent has a Will and then has children, those children are treated as if they were born prior to the Will, and they are afforded the same treatment as any other siblings. Of course, there is always the case of the child or grandchild who did not live up to expectations.  You may think just not mentioning them in your Will is sufficient to leave them nothing.  However, simply leaving them out is not enough.  You should specifically identify them and state they are not to benefit from your estate.

Your estate planning documents should be reviewed with an attorney on a regular basis and kept current with your life changes.  Birth, death, marriage, moving, and divorce are but a few life changes that can significantly affect your estate planning. Don’t wait until it’s too late to revise your plans to reflect your wishes and circumstances.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

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COMMON LAW MARRIAGE

Posted by on Aug 12, 2012 in Family Law | 0 comments

“The Legal Corner”

By Sam A. Moak

Common Law Marriage

 

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

The common link, and most ironic thing about, in virtually all common-law marriages is that the marriage is not officially recognized until its over.

It was not until the flame had gone out of Emmitt Smith and Hope Wilson’s romance and he had moved on to another relationship that Wilson said she and Smith were common-law husband and wife.

Claims of common-law marriage is not something reserved only for the famous.  Men and women claim to have been common-law married when one party is trying to inherit under the other’s will, receive insurance benefits, bring a wrong-ful death action on the other’s behalf, or share in Social Security disability or worker’s compensation payments.

Common-law marriage is a difficult thing to prove no matter what stage it is in, on or off.  Texas is one of only 11 states, and the District of Columbia, that recognize common-law marriage.  Common-law marriage in Texas has its roots in our rural past.  A man and woman might have lived on a rural ranch together for 50 years, raised children and grandchildren, yet never had a ceremonial marriage because they could not take time off for a daylong trip to the nearest justice of the peace.

Common-law marriage is not just something of the past in Texas.  It is still a viable option.  How is one established?  The governing statute is §2.401 of the Family Code.  This statute states that an informal marriage can be proved either by filing a declaration of marriage with the county clerk or by meeting a three-part test.  Part 1, the couple had an agreement to be married, either explicit or implicit; Part 2, after the agreement, they lived in Texas as husband and wife; and Part 3, they represented to others, often called “holding out,” that they were married.

The existence of a marriage is question of fact.  It can be proved by direct or circumstantial evidence.  The credibility of the parties is extremely important because juries are often inclined to reward individuals they perceive as dutiful victims or punish perceived opportunists.

No magic words are necessary to establish an agreement to be married.  Texas case law has found a common-law marriage existed where evidence showed the maintenance of a common household, raising of a family together, establishing joint financial accounts, purchasing property together, or filing joint tax returns.

In today’s society it is easy to get married formally, some may argue too easy, yet some people never formalize their wedding relationship with a wedding ceremony.  However, based on the problems that can arise without this formalization, it is better to rely on common sense than on common law to secure the future.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

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