Planning for the Future: Designating a Guardian Before the Need Arises vs. Durable Powers of Attorney

Sugar Land Litigation Lawyers Discuss Determining Guardianship Matters

Many Texas residents are concerned about how their financial affairs would be managed if an accident, an illness, or just the aging process itself, left them unable to make financial decisions on their own. Texas law provides several mechanisms to address those unfortunate circumstances. Two such mechanisms are:

  • Written Declaration to Designate Guardian Before Need Arises
  • Durable Power of Attorney

While both provide some protection against the uncertainties of the future, they are quite different. Which might be better for you?

Declaration to Designate Guardian Before Need Arises

Pursuant to Texas Estates Code § 1104.202, a competent adult in Texas may designate a guardian to serve in the event of the adult’s subsequent disability. The competent adult, typically referred to as the “declarant,” may also expressly disqualify persons that he or she would not want to be appointed guardian. Unless the court determines that the person designated to serve as guardian is disqualified or would not serve the best interests of the declarant, the court must appoint the designated person as guardian.

If the designated person does not qualify, is dead, or is otherwise unavailable to serve as guardian, the court will appoint the next designated alternate guardian, if any, named in the declaration. If no such alternate is named, or if the alternate cannot qualify or serve, the court shall appoint another person to serve.

If a declarant designates the declarant’s spouse to serve as guardian, and the declarant is subsequently divorced from that spouse before a guardian is appointed, the provision of the declaration designating the spouse has no effect.

Effect of the Court’s Appointment of a Guardian

In virtually all cases, upon appointment by the court, the guardian takes charge of the declarant’s property, managing it for the benefit of the declarant, and generally taking care of the needs of the declarant as long as he or she lives. The guardian has the legal ability to make decisions on behalf of the declarant (after appointment of the guardian, the declarant is referred to as the “ward”). Generally speaking, after appointment of the guardian, the ward loses the legal authority to make decisions in those areas to which the guardian has been given authority.

Alternative to Guardianship: Durable Power of Attorney

Before a court will appoint a guardian; however, it must be shown that alternatives to guardianship have been considered and found unworkable. One such alternative is the durable power of attorney.

A power of attorney is a legal document that gives a designated person the authority to act in the place of the principal’s place. The designated person, often referred to as an attorney in fact, can write checks, make investment decisions and see to other matters as long as the power of attorney document provides adequate authority. The attorney in fact is not named by a judge. Rather his or her duties are described (and sometimes limited) by the terms of the power of attorney document itself.

Many powers of attorney are considered “durable” because they are carefully crafted to survive the disability or incapacity of the principal. There are several important differences between the durable power of attorney and the guardianship. With the power of attorney:

  • The principal retains the legal right to act for himself or herself
  • One has no need to seek an Order from a court
  • The principal has the right to revoke it
  • Should it become unworkable and a guardian is appointed, the power of attorney is automatically  terminated by the creation of the the guardianship

Romano & Sumner: Skilled, Caring Legal Advisors

Texas BarToday Top Ten BadgeAre you concerned about how your affairs will be managed in the event you are unable to manage them yourself? Remember that time can be your worst enemy when it comes to these decisions. If you become incapacitated, it is then too late to designate a guardian or to execute a power of attorney document. Enjoy the peace of mind that comes from handling these important issues now, instead of burdening your family with such issues later.

The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients in all types of complex personal planning issues, including guardianships and powers of attorney. We have assisted many clients as they have sought to protect and preserve their hard-earned wealth. At Romano & Sumner, we provide customized service; we know that each situation is unique. We listen before we suggest a solution to your needs and issues. We pride ourselves not only on our professionalism, but upon our client service. We return phone calls within one business day. We keep clients informed. We complete the work within the allotted time frame. Call us at 281–242–0995 or complete our online contact form.

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    Romano & Sumner, PLLC

    Romano & Sumner, PLLC