Let’s start off by saying that not all Guardianships are bad. Guardianships play a vital role in Collin County by allowing caretakers the means to make financial (Guardian of the Estate) and health (Guardian of the
Person) related decisions for those who are not able to anymore and have no one else to speak for them.
Unfortunately, court appointed Guardianships sometimes do not work out in the best interests of the Ward (the person that has the guardianship over them) or his or her family, so many Collin County estate planning lawyers are often asked to advise their clients about the best ways to avoid a Guardianship. The simple answer is that advanced planning can almost always keep a person’s affairs out of the probate court, and the following are some of the tools Collin County estate planning attorneys use to ensure their clients have a say in who will handle their affairs for them when they are no longer able.
Power of Attorney
A Power of Attorney is a document that grants an agent authority to act on behalf of a person (the principal) in various financial matters, such as paying bills, buying and selling real estate, or even conducting business dealings. Either a Springing Power of Attorney (in effect only if the principal is incapacitated) or a Durable Power of Attorney (in effect at the time of signing) could help avoid a Guardian of the Estate being appointed by the Probate Court as an agent has already been designated to handle these financial decisions.
However, there have been some cases where the agent has been accused of mismanaging financial affairs or decides not to act as Power of Attorney, thus leading to Guardianship hearings. Collin County estate planning attorneys advise their clients to choose someone who they can trust to handle their finances fairly, and to also be sure that the person being named on the document is aware of the situation and agrees to serve in that vital role.
Revocable Living Trust
While a more in-depth discussion of trusts is beyond the scope of this article, generally, a revocable living trust is a document that can be used to avoid probate, and it can also be used to potentially avoid a guardianship of the estate. A revocable living trust most frequently has the trust creator (the grantor) as the initial trustee. But if the grantor becomes incapacitated, the successor trustee steps forward and manages the assets of the trust on behalf of the grantor. If the grantor’s assets were properly put into trust, then a Guardian of the Estate is less likely to be necessary.
Living Will and Medical Power of Attorney
The Living Will and Medical Power of Attorney are documents that lay out what type of medical care a person wants and who should make medical decisions for that person in the event of incapacitation. Once again, the Medical Power of Attorney should be someone who understands the importance of this role and can be trusted to make important medical decisions on behalf of the principal. Otherwise, the Probate Court may have to appoint a Guardian of the Person.
Declaration of Guardian
Even if both the Power of Attorney and Medical Power of Attorney documents fail in their intended purposes and a Guardianship must be put in place, there is still one document that can help to ensure that a person is placed under the care of a Guardian of their own choosing instead of someone appointed by the Probate Court. The Declaration of Guardian is a document in which a person can name the agents he or she would like to serve as either Guardian of the Estate, Guardian of the Person, or both. The Declaration of Guardian is presented to the Probate Court during Guardianship proceedings to inform the judge that the proposed Ward made a decision of sound mind to appoint specific people to these Guardian roles. Collin County estate planning lawyers find that Probate Court judges normally appoint those named in the Declaration of Guardian (unless there is a very compelling reason not to), as the document allows the Ward to make his or her wishes known even if he or she is incapacitated.
If you have any questions about how a Collin County estate planning attorney can help avoid a Guardianship, please contact us at (214) 292-4225 or [email protected] to set up a consultation.