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.