Woman Helping a Senior With Documents

If you are prone to think in absolute terms, draw conclusions without investigating facts, or believe sensational articles, then read no further. 

That is because we are discussing guardianship, which is an area of law that is nuanced like no other. 

A guardianship is a court-ordered relationship that is created to protect a person who is incapable of handling their estate or personal affairs. Guardianship law varies by state. 

Types of Guardianship

In Texas, there are 2 types of guardianship: estate and person. A guardian of the estate handles the ward’s finances. A guardian of the person handles the ward’s medical and living decisions. 

A guardianship is an action of last resort. It is created only when there is no lesser restrictive alternative to protect a person. You can take steps to minimize the chances of being placed under a guardianship by signing a durable financial power of attorney and a medical power of attorney. These appoint agents to handle your finances and medical decisions. If you have powers of attorney and everything is working well, then if you later become incapacitated there will be no need for a guardianship because  you already have an agent in place to protect you.

When is a Legal Guardianship Necessary?

It is only when you develop significant cognitive impairment and there is no planning, or the planning you do have in place fails, that a guardianship becomes necessary. 

We know all about the hazards of failing to plan. But what if you made the effort and have written powers of attorney in place? Why and how could they fail to protect you? 

There could be several reasons. First, you could have a failure of agents, meaning that every agent you named in your powers of attorney either are unable or unwilling to serve. This is common if your documents are old and you did not update them when an agent died, moved, or became disabled.  

Second, you could have a rogue agent. Your agent could steal from you, act against your wishes, or not take the time necessary to handle the position. This can be worse for you than having no agent at all. 

Third, you could act out against your own best interests. The powers of attorney do not remove your ability to make your own decisions. If, because of your incapacity, you begin making bad decisions that jeopardize your welfare, then a court may need to create a guardianship to protect you from yourself.

That is why guardianships are so nuanced. Every case is unique, and all factors must be examined.

The type and severity of your incapacity must be considered. You might be suffering from only a mild cognitive impairment and may not need protection. 

On the other hand, your impairment may mean that you have been repeatedly exploited by a scammer, or that you are prone to angry outbursts. Dementia, which strikes 1 in 10 Americans over 65, can affect not only your executive function but also your emotional control.  

Your family dynamics must be evaluated. Do you have family members who are close and willing to take an interest to help you? Or are your relatives fighting over you and creating an untenable situation? 

Your business interests are relevant. Are you in a position of authority where your incapacity could result in bad decisions that lead to liability or lawsuits? 

Your health is important. Are you taking your medications and seeing a physician regularly?

Don’t be fooled by the bad press. Someday, a guardianship may be your only hope. 

Hammerle Finley Can Help

If you are looking for legal assistance, schedule a consultation with one of the experienced attorneys at Hammerle Finley to discuss your options.

Virginia Hammerle is in her fourth decade of practicing law. She is Board Certified in Civil Trial by the Texas Board of Legal Specialization and an Accredited Estate Planner. Contact her at legaltalktexas@hammerle.com or visit www.hammerle.com. This column does not constitute legal advice.