Because you are dealing with Martin’s money and property, it is your duty to make decisions that are best for him. This means you must ignore your own interests and needs, and the interests and needs of other people.
To help act in Martin’s best interest, follow these guidelines:
- Read the guardianship order. Your powers and duties as Martin’s guardian of the estate are written in state law. They also may be written in the guardianship order that appointed you. Some guardianship orders may be detailed, while others may be very general. Read the guardianship order closely, follow any training or instruction provided to you by the court, and talk to your lawyer if you don’t understand it. Texas courts generally require a guardian to have a lawyer. Ask questions and learn all you can about what you should do—and what you should not do.
- Do what the guardianship order says—and don’t do what it says you should not do. It is important that you not act beyond what the law and the guardianship order allow, and that you carry out the basic tasks necessary. Your powers may be limited to certain actions or certain amounts of money. You may need to get the court to approve other actions. Even if you have the best intentions, follow the guardianship order.
- As much as possible, involve Martin in decisions. Many things can affect your decisions. For example, you might feel pressure from others. Martin’s abilities to make decisions might change from time to time, or maybe Martin was never able to make decisions about his money and property. Consider these three steps:
- First, ask Martin what he wants. He may be able to decide some things. If so, take this into account, especially if it is similar to his thinking in the past and the risk of harm to him is not unreasonable. For example, if Martin wants to handle money, see if he can manage a small bank account or a monthly cash allowance. Doing this will let him be in charge of a set amount, and you will limit the risk to that amount.
- Second, try to find out what Martin would have wanted. Look at any past decisions, actions, and statements. Find as much information as you can. Ask people who care about Martin what they think he would have wanted. Make the decision you think that Martin would have made, unless doing so would harm him.
- Third, do what you think is best for him. If you have looked hard and still don’t know what Martin would have wanted—or if Martin could never make decisions about money and property—use your judgment about what is best. Put Martin’s well‑being above saving money for others who may inherit his money and property. Make sure that he is safe and comfortable, and that his needs are met.
- Avoid conflicts of interest. A conflict of interest happens if you make a decision about Martin’s property that may benefit you or someone else at Martin’s expense. Because you were appointed by the court, you have a strict duty to avoid conflicts of interest—or even the appearance of a conflict of interest. Keep an “arm’s length distance” between your interests and any use of Martin’s money.
- Don’t borrow, loan, or give Martin’s money to yourself or others. Even if the guardianship order clearly allows gifts to you or others, be very careful to avoid conflicts of interest. The court generally must approve gifts or loans. Make sure that any gifts do not increase or complicate Martin’s taxes or change his plans for his property when he dies. Any gifts or loans should be in line with what Martin would have wanted. For example, if Martin gave money every year to a charity, the court may allow you to continue doing that.
- Avoid changing Martin’s plans for giving away his money or property when he dies. There may be rare situations when changing Martin’s plans is in his best interest. But you should get legal advice and approval from the court before you decide anything regarding his property after he dies.
- Don’t pay yourself for the time you spend acting as Martin’s guardian of the estate unless the court allows you to do so. If you are allowed to pay yourself, get legal advice, check with the court, and carefully document how much time you spend and what you do.
To avoid any surprises or misunderstandings, tell family about your fees when you begin your duties as a guardian of the estate. If you charge fees, charge fees that are reasonable. What is reasonable in one scenario may be unreasonable in another. Don't charge for things you do that are not specifically as guardian of the estate. For instance, don't charge fees if you shop for Martin or personally make home repairs. If necessary, you can pay someone else at a lower rate for these tasks and document the expenses.
Avoid possible conflicts of interest.
Sometimes people have good intentions but do things they shouldn’t. Because you are now a fiduciary, you should avoid any conflicts of interest. Here are a few examples of possible conflicts of interest:
Whose car is it?
You used Martin’s money to buy a car. You use the car to drive him to his appointments, but most of the time you drive it just for your own needs. This may be a conflict of interest.
Should you do business with family?
Martin needs repair work in his apartment. You hire your son and pay him from Martin’s money. This may be a conflict of interest, even though the work was needed. It appears that you have put your personal interest to benefit your son in conflict with Martin’s interests.