Guardianship: When Your Loved One Needs a Guardianship & Methods to Proactively Avoid a Guardianship

Under Texas law, a guardianship is created through a court-administered person designated to take care of a minor or incapacitated person and their property interests. Guardianships are most needed when a loved one loses capacity to make their own decisions for various reasons. Sometimes the loss of capacity occurs when there is a catastrophic injury such as a car accident or stroke. And sometimes a progressive disease that can accompany advanced age like Alzheimer’s or some other form of dementia can be the causal factor in needing a guardianship. Often people don’t understand that their spouse or adult aged children will not be allowed to step in and make medical and financial decisions for them if they lose the capacity needed to make these decisions on their own.

When proper planning has not been put into place, options are limited. Sometimes the only route is to seek a guardianship for the loved one who is no longer competent. Guardianship is expensive because the person seeking the guardianship must hire an attorney to represent her before a judge and prove that the proposed “ward” (the person who is no longer competent and can no longer make decisions on his own behalf) is truly in need of a guardian. Additionally, the court must appoint an attorney to represent the interests of the proposed ward, called an ad-litem, to make sure that the rights of the person (the proposed ward) are protected. This creates added expense because the person seeking guardianship to take care of Mom or Dad now must pay expenses of two attorneys.

The costs don’t end there. In addition to the expense of attorneys and time associated with a legal battle, if Mom or Dad didn’t create a valid guardianship or power of attorney while competent, you as the proposed guardian must account for how you spend every single penny of Mom’s money. The court must require you to make these accountings because you’ve forced an arrangement on Mom that has taken her rights away. The court may have decided that you are suitable to make all of Mom’s medical and financial decisions on her behalf but it must also hold you accountable. This accountability is accomplished through requiring you to track expenditures of Mom’s money and annually report the reasoning behind each financial expenditure.

Now, this extensive procedure can be avoided. If Mom and Dad had taken a proactive approach to Estate Planning and signed a valid durable financial power of attorney and a medical power of attorney while still able, naming the person they want to act on their behalf, all of this time, expense and accounting could be avoided.

Life is fragile. And no one knows the future but- the unthinkable could happen- a car accident, a stroke, or other severe injury could leave us without the ability to make our own decisions. And some progressive degenerative diseases can cause an individual who is currently capable to make decisions to have a dramatic drop in capacity over a short time span. Power of Attorney documents can protect you by making sure that the person you wish to make decisions on your behalf is in fact the person who has the authority to make those decisions for you. There are many different methods that can be used to accomplish this goal. The financial power of attorney needs to have very specific language (not like those found on the internet) to allow your agent the maximum latitude to help protect your finances and to pay for your healthcare and medical expenses should you have a need for extensive care from an injury or progressive illness.

Be proactive. Protect yourself, your wishes, your assets and your loved ones by establishing a complete Estate Plan.