ORDER APPOINTING PERMANENT GUARDIAN OF THE PERSON WITH FULL [LIMITED] AUTHORITY

Transcription

1 IN THE MATTER OF THE GUARDIANSHIP OF AN INCAPACITATED PERSON NO. IN THE [PROBATE] [COUNTY] COURT [AT LAW] OF COUNTY, TEXAS ORDER APPOINTING PERMANENT GUARDIAN OF THE PERSON WITH FULL [LIMITED] AUTHORITY [Delete information in brackets that does not apply, depending on whether applying for limited or full guardianship of the person and estate. Ensure order is consistent with application.] On this day came to be considered the application filed in the above-entitled and numbered cause by ( Guardian herein), requesting the appointment of as [Full] [Limited] Guardian of the Person of [insert name of Proposed Ward], ( Ward herein), an Incapacitated Person. Applicant,, appeared with and his/her attorney of record, [insert name of attorney]. The Ward, [insert name of Ward], appeared in person and through [his/her] Court-appointed attorney ad litem, [insert name of attorney ad litem]. [OR if the Ward is unable to appear at the hearing, use the following phrase, otherwise delete.] [Insert name of Ward], Ward, appeared by and through [his/her] Courtappointed attorney ad litem, [insert name of attorney ad litem]. The Court found that personal appearance of the Ward was not necessary because [insert reason Ward did not personally appear]. [If other persons attended the hearing, include this paragraph; otherwise delete.] [The following person(s) appeared in person at the hearing:] [List names.] I. Page 1,

2 Pursuant to 684(a) of the Texas Probate Code, the Court finds by clear and convincing evidence as follows: That [insert name of Ward], Ward, is a [male/female], born [insert Ward s birth date]; That Ward is incapacitated and therefore a Guardianship of the Person giving [full] [or] [limited] authority to the Guardian should be granted; That it is in the best interest of the Ward to have the Court appoint a [Full] [or] [Limited] Guardian of the Person for the Ward; and That the rights of persons and property will be protected by the appointment of a [Full] [or] [Limited] guardian. Pursuant to 684(b) of the Texas Probate Code, the Court further finds by a preponderance of the evidence as follows: That this Court has jurisdiction and venue of the case pursuant to 610 of the Texas Probate Code; That Guardian is qualified by law to act as [Full] [or] [Limited] Guardian of the Person and no other eligible, qualified person is available; [Delete the statement that does not apply.] That the Ward is totally without capacity to care for [himself/herself] and to manage [his/her] property; [OR] That the Ward has limited capacity to care for [himself/herself] and to manage [his/her] property; [Include the following paragraph for full guardianship, if applicable; otherwise, delete.] The Court finds by the preponderance of the evidence that [insert name of Ward], Ward, is totally incapacitated because of a mental condition [include if applicable; otherwise delete] and lacks capacity to vote in an election [include if applicable; otherwise delete] and lacks capacity to operate a motor vehicle. Page 2,

3 [OR] [Include the following paragraph for limited guardianship, if applicable; otherwise delete.] The Court further finds by the preponderance of the evidence that [insert name of Ward], Ward, is partially incapacitated because of a mental condition [include if applicable; otherwise delete] and lacks capacity to vote in an election [include if applicable; otherwise delete] and lacks capacity to operate a motor vehicle. That the Ward is indigent. [Delete if not applicable.] Pursuant to 684(c) of the Texas Probate Code, the Court further finds that the determination of incapacity is evidenced by recurring acts or occurrences within the preceding six- month period and not by isolated instances of negligence or bad judgment. II. That citation and notice of this proceeding has been given as provided by law and all persons required to be personally served with process have been properly served as required by law, or have signed waivers, or have appeared in person in Court. III. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the application be granted and that is appointed Guardian with [Full][Limited] authority of the Person of [insert name of Ward], Ward, for an indefinite term, subject to further orders of this Court. The Guardian of the Person is hereby granted [full] [limited] powers and duties to act in the Ward's behalf as set forth in 767 and 768 of the Texas Probate Code, including, but not limited to, the following: [Include the same powers requested in application.] As Guardian of the Person: a) the power to review, to take possession of and consent to the disclosure of the Ward s medical, dental, and psychological records; Page 3,

4 b) the power to apply for, arrange for, and consent to any and all psychological, psychiatric, or medical examinations, treatments, tests, or evaluations for the Ward, but not the authority to consent to in-patient psychiatric commitment of the Ward; c) the power to consent or to object to all medical and dental treatment and procedure for the Ward, including surgery, unless consent by a guardian is prohibited by other law; d) pursuant to and of the Texas Health and Safety Code, the power to make a treatment decision that may include a decision to withhold or withdraw lifesustaining treatment from the Ward and the power to execute an Out-of-Hospital Do-Not- Resuscitate (DNR) Order on behalf of the Ward; e) the right to take charge of and supervise the person of the Ward, establish the legal domicile of the Ward, and place the Ward in appropriate living facilities; f) the power to consent to appropriate educational, vocational and recreational services for the Ward; g) the power to access all government funds and services to which the Ward may be entitled. IV. The Court imposes those limitations on the Ward that are consistent with the preceding grant of powers to the Guardian in paragraph III. of this order. IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Ward no longer have the right to: [For limited guardianship, delete the limitations that do not apply.] For Guardianship of the Person: a) operate a motor vehicle; b) vote in a public election or any other matter; c) consent to marriage; d) execute a will or make a codicil or amendment to any existing will; e) execute a trust or make an amendment to any existing trust; f) execute a power of attorney or make an amendment to any existing power of attorney; Page 4,

5 g) make decisions or give consent to medical or surgical treatment; h) choose his or her domicile or residence; i) personally to seek employment, obtain government assistance or access government benefits or funds. In compliance with 675 of the Texas Probate Code, the Ward retains all legal and civil rights and powers except those designated by this order as being specifically granted to the guardian. V. IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that any Medical Power of Attorney issued by the Ward is revoked and the power to make medical decisions on behalf of the Ward is vested in the Guardian upon qualification of the Guardian pursuant to of the Texas Health and Safety Code. IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that any Durable or Non-durable Powers of Attorney for financial matters issued by the Ward are terminated and revoked as of the date of the Guardian s qualification pursuant to 485 of the Texas Probate Code, that all assets of the estate in the control of or under the authority of the attorney in fact be delivered promptly to the Guardian, that an accounting be made to the Guardian of the actions taken by the attorney in fact concerning the property covered by the power of attorney and that the attorney in fact inform the Guardian of the names and addresses of all businesses with whom the attorney in fact has used the power of attorney. VI. The Court finds that: [Choose one of the following paragraphs and delete the other.] Page 5,

6 The regular monthly income of the Ward is sufficient to meet the monthly expenses for [the education and maintenance of the Ward]] and it is necessary for the Guardian to expend funds each month from the Ward s income for [the education and maintenance of the Ward] and that the Application should be and is hereby granted. [or] The regular monthly income of the Ward is not sufficient to meet the monthly expenses for [the education and maintenance of the Ward] ; is it necessary for the Guardian to expend funds each month from sources other than the Ward s income and for [the education and maintenance of the Ward]]; and that the Application should be and is hereby granted. IT IS THEREFORE ORDERED that the Guardian of the Person of [insert name of Ward], is authorized to make expenditure(s) for [insert each type of expense such as rent, utilities, food etc listed in the application], per month from the Ward s Social Security Disability income for [the education and maintenance of the Ward], up to and including the following amount(s): EDUCATION AND MAINTENANCE OF WARD Income: $ TOTAL $ (omit if both are not used) [and/or] IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the expenditures and amounts authorized in this Order may be expended on a monthly basis without further Order of this Court. VII. Page 6,

7 THE COURT FURTHER FINDS that pursuant to of the Texas Human Resources Code, no bond be required of the Guardian. The Guardianship shall take the oath, the Clerk of the Court shall issue letters of Guardianship of the Person of [insert name of Ward], an Incapacitated Person, to the Guardian. THE COURT FURTHER FINDS that pursuant to of the Texas Human Resources Code, no fee including, but not limited to, ad litem fees, filing fees, costs of certifying orders, and service costs, shall be assessed against the Guardian. IT IS FURTHER ORDERED that an appraisal of the estate is not necessary. [Delete the following if the Court requires separate order for appointment and payment of attorney ad litem.] IT IS FURTHER ORDERED that [insert name of attorney ad litem], the duly appointed attorney ad litem for the Ward, is hereby awarded a fee of $[insert amount] for [his/her] services in this guardianship matter. [Choose the correct statement and delete the other.] [Because the Ward is found to be indigent, said fee shall be paid from the General Funds of [insert name of county] County, Texas, as provided in 665A of the Texas Probate Code and the Clerk of the Court shall file this order and deliver immediately a true and correct copy to the County Auditor for processing and presentation to the County Commissioner s Court for payment.] [OR]because client is found to be indigent, court may be able to locate a volunteer lawyer to take this case pro bono. IT IS FURTHER ORDERED that [insert name of attorney ad litem], attorney ad litem is hereby discharged and released from [his/her] duties as attorney ad litem in this matter. IT IS ORDERED that [insert name of APPLICANT attorney], attorney for applicant has provided his/her services in that capacity pro bono through the nonprofit Fort Bend Lawyers CARAE, affiliated with the Fort Bend County Bar Association, that in cooperation with the Brazos Page 7,

8 Bend Guardianship Services program, a nonprofit organization operating a location guardianship program for low-income residents of this county, as defined in Section 601(13) of the Texas Probate Code, is providing free legal assistance to applicants and proposed wards in uncontested applications for guardianship of the person, based on a screening and determination that the applicant cannot afford to pay the costs of a guardianship proceeding, and that these applicants were screened by Fort Bend Lawyers CARE and found to lack sufficient funds to pay legal fees for a guardianship proceeding; and applicant attorney is hereby discharged and released from [his/her] duties as applicant attorney in this matter. [If the Proposed Ward is AOC and this order is to be signed before the AOC s eighteenth birthday, include the following sentence.] This guardianship order takes effect no earlier than the eighteenth birthday of the Ward, which is [insert Ward s birth date]. Signed this day of,. JUDGE PRESIDING Page 8,