Who Manages the Community Property in Guardianships?

Under Section 883 of the Probate Code, when a guardian is appointed for one spouse who has become incapacitated, the surviving spouse automatically has the right to manage and control 100% of the community property, even the portion owned by the incapacitated spouse.  However, in the event that the Probate Court determines that the non-incapacitated spouse is disqualified for some reason for serving as the community administrator, then the court-appointed guardian would be vested with the responsibility for managing the community property of the incapacitated spouse.

In February 2012, the San Antonio Court of Appeals overruled a Probate Court in San Antonio in a case that interpreted Section 883.  In that case, the Probate Court ruled Mrs. Hood incapacitated and appointed her daughter as Guardian over her mother’s estate.  Problems with the guardianship arose when Mrs. Hood’s current husband, Mr. Hood, was not allowed to control and manage the couple’s community property assets.  The Probate Court partitioned the couple’s community property and granted Ms. Hood’s Guardian authority to manage those assets.

The Appellate Court discussed Section 883 in great detail.  In its opinion, the Court applied the plain language of Section 883 and determined that the non-incapacitated spouse automatically has the right to control the community property, unless evidence is introduced at the hearing on the guardianship to establish that the spouse is not qualified to serve as the community administrator.  In Mrs. Hood’s case, no such evidence was ever introduced, so the plain language of Section 883 requires that Mr. Hood be recognized as the Community Administrator.

F+M has recently been involved in a case very similar to the Hood guardianship.  In our case, the Probate Judge applied Section 883 in the same manner as the San Antonio Judge.  It appears that the Court of Appeals disagrees with both of them.  The guardianship process is very complex and requires the assistance of a skilled attorney.  If you, or a loved one, have questions concerning the guardianship process, please contact Ford + Mathiason for guidance.

Contested Guardianship

In North Carolina, a young man named Freddie Lempke is slowly trying to recover from severe brain and spinal cord injuries suffered during a car accident in March of 2011.  To make the situation more difficult, the hospital, WakeMed, which has been caring for Freddie, has now filed to become Freddie’s legal Guardian.

The problem is that Freddie already has a Guardian, his father.  Medicaid  has been reimbursing the WakeMed Hospital for Freddie’s care, and now, the hospital is claiming that Mr. Lempke failed to renew Freddie’s application for Medicaid.  The constant care and treatments are expensive, with those costs reaching nearly $2,000,000.00 in 2011 alone.  WakeMed’s official statement claims the intent of the guardianship request is only to secure the Medicaid coverage for Freddie as the hospital does not believe Mr. Lempke is capable of completing all of the paperwork necessary to restore Freddie’s Medicaid coverage.

It appears WakeMed’s request to become Freddie’s Guardian is done in good faith and to benefit Freddie.  However, if the request is granted, the hospital not Freddie’s father will be making decisions for Freddie’s long and short term care.  As many would imagine, this possibility upsets Mr. Lempke greatly.  He describes the process as a “nightmare.”  The Court ruled in favor of Mr. Lempke allowing him until July 25, 2012 to file all of the necessary paperwork to secure his son’s Medicaid funding.

The Guardianship process is very intensive, and the Guardian must commit a great deal of time and resources to the process.  The Guardian has extensive duties and is responsible for making all medical and financial decisions for their Ward.  Any individual appointed as the Guardian should not take on the responsibilities without the help of an experienced attorney.

If you or someone you know has questions about the Guardianship process please contact Ford + Mathiason LLP today.