The establishment of an adult guardianship/ward relationship is a big decision. Texas recognizes two types of guardianships: guardian of the person (responsible for making the ward’s personal decisions) and guardian of the estate (responsible for making the wards financial decisions). The same person can fulfill both roles, if necessary.
A guardianship is not appropriate under every circumstance, and there are a number of alternatives under Texas law that might satisfy your basic purposes without the intrusiveness of a full-fledged guardianship. It is important to think this through in advance, however, because once you lose mental competence, many legal avenues close.
Estate Planning Documents
There are five major estate planning documents that you might consider executing as a substitute for a full guardianship. You must execute them before you become incapacitated (while you still understand what you are signing) in order for them to serve their intended purpose.
- Statutory Durable Power of Attorney: This document allows you to authorize someone else to make decisions on your behalf regarding your property and finances.
- Medical Power of Attorney: This document grants someone else the authority to make medical decisions on your behalf.
- HIPAA Authorization Form: This document allows you to authorize the release of your medical records to someone else: your health care provider, your attorney-in-fact (if you granted power of attorney to someone) or whoever else you designate.
- Directive to Physicians and Family or Surrogates: This document is essentially a living will. It allows you to make medical decisions in advance, such as whether you wish to be kept alive artificially.
- Declaration of Guardian in the Event of Later Need or Incapacity: The title of this document accurately describes its purpose. While it won’t establish an alternative to guardianship, it will delay guardianship until after you become incapacitated (if that ever happens), and express your wishes concerning the identity of your guardian should one become necessary.
With respect to marital assets, Texas is a community property state. If one spouse becomes incapacitated, the other spouse can manage the entirety of the community property unilaterally as long as a court finds that: (i) you are incapacitated, and (ii) your spouse is qualified to manage the property unilaterally.
Since this is easier to arrange than a formal guardianship, it might be a valid option for managing your finances. Other arrangements would have to be made, of course, concerning the management of your personal affairs. Even financial management arrangements will have to be changed if your spouse dies or becomes incompetent himself.
Joint Bank Accounts
When you establish a joint bank account, anyone whose name is on the account has the authority to deposit and withdraw funds from it. Establishing a joint bank account for an aging parent and an adult offspring might be a good idea while the aging parent is still competent. This will give the offspring many of the powers of a guardian of the estate should the parent subsequently become incompetent.
Supported Decision-Making Agreements
A supported decision-making agreement is essentially an informal guardianship arrangement where one person (the “supporter”) agrees to help you make decisions in your day-to-day life, such as where to live, whether to accept a proposed medical treatment, etc. The Texas Estates Code regulates this type of relationship under the Supported Decision-Making Act. The arrangement is considerably less restrictive than a guardianship.
Adult Protective Services (APS), a part of the Texas Elder Abuse and Mistreatment Institute, is dedicated to preventing the abuse, neglect and exploitation of the elderly. It offers a number of services aimed at the elderly that might serve to reduce or eliminate the need for a guardianship, such as:
- Investigating suspected abuse
- Providing or arranging for services such as food, shelter, medical treatment (including mental health treatment), home healthcare services, home repairs, transportation, and money management services
- Action to stop or prevent abuse
To utilize these services, you would need to enter into a contract with APS.
The local Area Agency on Aging provides adults over 60 with information and assistance to help you take advantage of various community services that are available. These services are particularly targeted toward the economically needy, minorities, and people living in rural areas where appropriate services might be difficult to find.
Bill Payers and Representative Payees
Paying bills on time and managing money can be a major challenge for the elderly as cognitive decline sets in. After all, some degree of cognitive decline is a normal part of the aging process. Forgetting a single payment for, say, long-term care insurance, could result in cancellation of your policy and potentially disastrous consequences down the road. Many arrangements are possible, such as:
- If you are physically or mentally disabled, you can designate a Representative Payee for your Social Security or SSI payments to help you manage these benefits. Funds will go into a special account that only the Representative Payee has access to.
- You can name a Veteran’s Benefits Fiduciary to handle your veteran’s pension.
- The Social Security Administration, the Veterans Administration, the Railroad Retirement Board, and the Office of Personnel Management all offer programs that allow you to designate someone to help you pay your bills or to receive your benefits check on your behalf.
Now Is the Time to Act
It is important that you act before incompetence overtakes you or your loved one. Because by then, many of the foregoing options will be impossible (an incompetent person cannot grant power of attorney, for example). We can help you craft a unique solution that will be tailor-made to your particular circumstances and concerns.
We Stand Ready to Assist You
If you or your loved one are considering establishing a guardianship or if you are examining alternatives to guardianship, the assistance of a Texas guardianship attorney could be critical to optimizing your decision-making process.
At Romano & Sumner, we represent clients throughout Sugar Land, including Mayfield Park, Ragus Lake Estates, Sugar Lakes, and elsewhere in Fort Bend County. Contact us today to schedule a free initial consultation – call us at (281) 242-0995 or fill out our online contact form.