How Do I Avoid Needing A Court-Administered Guardianship For Myself Or A Loved One?

How To Avoid Court-Administered Guardianship For Yourself Or A Mentally Incapacitated Loved One

Creating a court-administered guardianship for a loved one who has become incapacitated or incompetent can be a very difficult procedure for a family. The process is complicated and expensive. It may also be challenging to choose who is the best fit to serve as guardian, and the discussion can lead to disagreements about what is best for the person the guardianship is to protect. 

If you are older or suffering from a health condition that could put you at risk of becoming mentally incapacitated in the future, you probably worry about being a burden to your family. You also want to avoid a court-administered guardianship, if possible, and ensure your wishes are respected as to your personal and financial care. In the same way, if you have a loved one at risk of becoming incapacitated, you want to ensure their health, well-being, and finances will be taken care of when they can no longer decide for themselves, in as easy and inexpensive a manner as possible.

Pre-planning is necessary to avoid the need for a court-administered guardianship. People live much longer these days, and Dementia and Alzheimer's are common issues families face with loved ones or themselves. Failing to pre-plan means that it will probably be necessary to open a court-administered guardianship. 

The drafting of a Statutory Durable Power of Attorney and a Medical Power of Attorney are critical elements of this pre-planning.

How To Draw Up A Statutory Durable Power Of Attorney

When you or your loved one is still competent, a Statutory Durable Power of Attorney should be drawn up to appoint an agent to act on your or their behalf. This power of attorney grants your agent the power to handle financial and business matters on your behalf. It can become effective immediately or only when you or your loved one is judged incompetent by one or more doctors. The power of attorney can be as broad or as limited as the person signing it wants it to be.

Important questions to decide in drawing up a Statutory Durable Power of Attorney include whether the agent will have the power to:

• Change estate planning details
• Change beneficiaries on life insurance or accounts
• Draw up, revise, or revoke trust agreements
• Make gifts, and subject to what limitations (this can be important if Medicaid planning for the loved one becomes necessary)

If one of the powers the agent might be called on to exercise is dealing with real estate, the power of attorney may need to be recorded in the real estate records of the county where any real estate is located. 

How To Draw Up A Medical Power Of Attorney

This is a separate, independent power of attorney from the Statutory Durable Power of Attorney. It is a standard Texas form that appoints an agent to make medical decisions on your behalf if you or your loved one becomes incompetent. The person you believe best suited for this role may be completely different from the person you appoint under the Statutory Durable Power of Attorney. The nature of the decisions this person will face is quite different.

The Importance Of Appointing Alternate Agents

Just like having an understudy in a play is crucial, it is just as important to appoint alternate agents when drawing up your powers of attorney. These alternates can automatically step in if the first agent cannot act for some reason. If alternates are appointed when the powers of attorney are first drawn up, it avoids having to amend or draw up a new power of attorney if the original agent can't serve. It will already be too late to appoint an alternate if you or your loved one has become incompetent. Then, court-appointed guardianship again may be the only option.

Don't Wait Until It's Too Late To Take Action

This is one of those legal areas where procrastination is the enemy. Waiting too long to draft the instruments to appoint these agents can cause you trouble and cost a boatload of money. If you are ready to speak with an estate planning attorney about drafting a Statutory Durable Power of Attorney and Medical Power of Attorney, please contact Adair M. Buckner today for a free consultation*.

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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.