Unfortunately, people don't stay young and healthy forever. While no one likes to think about growing old, getting sick, becoming disabled, or even incapacitated, it's incredibly important to plan ahead for the possibility. Ask yourself:
- If you become incapacitated, who will have the legal authority to take care of you?
- If a parent or other loved one becomes incapacitated, who will be able to assist them with managing their assets or healthcare?
- If you die before your children reach adulthood, who will have custody over them or be able to take care of their inheritance until they come of age?
Whenever we ask questions about capacity or managing someone's financial or medical care, we enter the realm of guardianships.
Technically, a guardianship is a court appointment of someone to care for the physical well-being of someone who can't care for themselves. It may also include the appointment of someone to take care of the finances of someone who can no longer manage their own assets. Most often the court appoints the same person to manage the incapacitated adult's finances and healthcare. For brevity, we will use the general term of guardian, or guardianship to cover both roles.
Guardian for Me
As mentioned above, guardians must be appointed by a court. But what happens if more than one person wants to be guardian? State statutes list an order of priority for people wishing to serve as guardian. However, what if, for example, two kids are fighting over who gets to care for their incapacitated father? Both kids are qualified and share the same level of priority. What happens then?
To make a long story short, the court decides. That might not sound so bad. After all, mediating disputes is one of the primary functions of the court. However, those kids will likely spend thousands of dollars and ruin their relationship fighting it out — and all the while their father has no one to care for him.
A better solution, therefore, is to give the court some direction in appointing a guardian. A guardian properly nominated by the ward has the highest priority for appointment. In other words, if the father in the example above had nominated one of his two kids to serve as his agent beforehand in his legal documents, the whole dispute may have been avoided.
Guardian for my Children
You may not have thought much about someday needing a guardian for yourself, but have you considered what would happen to your kids if you were no longer able to care for them? If you and your spouse die, who will get custody of your minor children?
Although minors generally cannot nominate a guardian, a parent can nominate a guardian through their estate planning documents. If you have minor children, this type of provision is a crucial part of your legal planning.
Long and contested guardianships can be traumatizing for children. If you wish to provide the best life for your kids after you are gone, nominating someone to serve as their guardian is a necessity. You can also list alternates to serve if your first preference is unable or unwilling to do so.
This type of decision should not be made lightly. Talk with your family to see who would be willing and able to serve as guardian. Even after you make a decision, let your family know your wishes and encourage them not to contest the guardianship, should one ever become necessary.
Guardianship vs. Durable Power of Attorney
The main difference between these two processes is court supervision:
- A power of attorney is signed while the individual is still (mentally or legally) competent; the individual willingly gave someone powers over them.
- A guardianship is conducted when someone is not competent; the individual does not willingly give someone powers over them.
Because the individual in a guardianship is not willingly giving someone those powers, a court supervises the process to ensure the welfare of the ward. State laws require the guardian to notify certain individuals (including the ward) of the case, to propose a plan of care for the ward, to file regular reports on the status of the ward's financial and/or medical affairs, etc.
In short, a guardianship in Texas is much more work than a power of attorney, and, as a result, it is much more expensive. A Durable Power of Attorney may be a few hundred dollars, while a guardianship can reach thousands of dollars in attorney's fees, plus court costs and other expenses.
The good news is that those costs can likely be avoided by executing a Durable Power of Attorney while you are still competent. However, there are still certain cases where an individual with a power of attorney requires a court-appointed guardian.
Hopefully, you or your children will never need a guardianship. But estate planning is all about preparing for the worst. Call our Brazos County estate planning lawyers today at 979-703-7014 to learn how to stay in control and ensure your affairs are managed by someone of your choosing in the event of illness, disability, or incapacity.