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Houston Estate Planning and Probate Blog

Monday, October 28, 2013

Guardianships and How to Avoid Them

If a person becomes mentally or physically handicapped to a point where they can no longer make rational decisions about their person or their finances, their loved ones may consider a guardianship. In Texas, there are two types of guardians - a guardian of the person would make decisions concerning the physical person of the disabled individual, and a guardian of the estate would make decisions about the finances.

Typically, a loved one who is seeking a guardianship will petition the appropriate court to be appointed guardian. The court will require a medical doctor to make an examination of the disabled individual, also referred to as the ward, and appoint an attorney to represent the ward’s interests. The court will then typically hold a hearing to determine whether a guardianship should be established. If so, the ward would no longer have the ability to make his or her own medical or financial decisions. The guardian must file annual reports on the status of the ward and his finances.

Guardianships can be an expensive legal process, and in many cases they are not necessary or could be avoided with a little advance planning. One way is with a financial power of attorney, and advance directives for healthcare such as living wills and medical powers of attorney. With those documents, a mentally competent adult can appoint one or more individuals to handle his or her finances and healthcare decisions in the event that he or she can no longer take care of those things. A living trust is also a good way to allow someone to handle your financial affairs – you can create the trust while you are alive, and if you become incapacitated someone else can manage your trust property on your behalf.

In addition to establishing durable powers of attorney and advanced healthcare directives and living trusts, it is often beneficial to apply for representative payee status for government benefits. If a person gets VA benefits, Social Security or Supplemental Security Income, the Social Security Administration or the Veterans’ Administration can appoint a representative payee for the benefits without requiring a conservatorship or guardianship. This can be especially helpful in situations in which the ward owns no assets and the only income is from Social Security or the VA.

When a loved one becomes mentally or physically handicapped to the point of no longer being able to take care of his or her own affairs, it can be tough for loved ones to know what to do. Fortunately, the law provides many options for people in this situation. As with most things, thoughtful planning in advance can prevent many problems down the road.

 


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