As the population in America grows older, it’s becoming common for adult children to be called upon to care for their sick or aging parents. Typically, this situation begins with the adult child helping with bills, physician appointments, medication, and transportation as needed. Eventually, this can evolve into almost a full-time job of caring for a parent. Despite the life-altering commitment, these adult children make to their parents, occasionally the law stands in the way of the adult children being able to make timely decisions regarding finances or medical decisions for their elderly parent.
Common Scenario: Sarah is caring for her 90-year-old mother with Dementia. At first, Sarah would have mom sign checks from her account to pay bills and would accompany her to the doctor’s visits. Unfortunately, a bank officer recently found out that Sarah is not on the account and is now refusing to honor checks without speaking to the Mother. Also, the doctor has suggested that Sarah should consider a guardianship over Mom so that Sarah can formally sign a consent to treatment. Sarah wants to help her Mom but is unsure of what to do from here.
If Sarah were to speak with a lawyer, she would learn that the law provides that when most people attain certain ages, they are vested with a wide array of civil rights. For example, when someone turns 18, they become a legal adult for most purposes. So, because the person (in this scenario, Mom), is vested with her own rights including the right to make her own decisions, what happens if she can’t make well informed decisions in her best interest?
Fortunately, the law provides two solutions:
First, hopefully, Mom had the foresight to visit an attorney to execute an estate plan that included both a Medical Power of Attorney and a Durable Power of Attorney. In essence, powers of attorney are documents in which a person can appoint someone else, known as an “agent” to make decisions for them if they are unable to do so themselves. A Medical Power of Attorney allows the named agent the legal right to make most medical decisions for someone else and a Durable Power of Attorney is a document which allows the agent the legal right to make financial or property decisions for the principal. Implementing these documents is a simple and low-cost way to ensure that you’re protected. If Mom has those documents in place, Sarah, acting under the authority of the documents may simply present them to the bank and physician and everything should continue running smoothly with Sarah in charge as the agent.
An important caveat: Mom would have needed to execute those documents while she was still competent. If she did not, and is no longer competent, that option is off the table, and Sarah will need to consider a legal guardianship.
Second, in Texas, a guardianship proceeding allows an interested person (such as a loved-one, relative, or friend) to petition a court to declare Mom as incapacitated. Generally meaning that Mom is not able to meet her basic needs like food and clothing or the competency to make medical decisions. If Sarah’s mom failed to do any estate planning and obtain the powers of attorney listed above, then Sarah will likely need to resort to guardianship.
The bottom line here – if Mom didn’t execute powers of attorney, a guardianship may be Sarah’s best option to help care for her Mom. Still, Texas prefers the least restrictive means on the proposed Ward and generally views guardianships as a very restrictive means of assisting a person. It’s important to evaluate all possible solutions in these cases and not merely assume a guardianship is the only course of action.
Without question, caring for an aging or sick parent is one of the most honorable and selfless things you can do. It’s demanding and challenging on many levels. If you are the caretaker for an aging or sick person who has lost their capacity, you may consider taking action now to safeguard your continued ability to help them. Weldy Law, PLLC can help you ensure that your rights are protected. Weldy Law, PLLC, is experienced in planning and can guide you through a simple, cost-effective process to resolve these issues.
The above blog is for informational purposes only and is not legal advice nor does any information or communication with this website create an attorney-client relationship.