A probate attorney, who routinely deals with guardianships, will be the first to tell you that guardianships are expensive. But, in some situations, there are simply no other alternatives to provide care for a loved one. This forces family or close friends to navigate the legal system in order to create a guardianship, which is essentially a legal transfer of certain rights and decision-making power from one person to another.
Who are guardianships for?
Guardianships are primarily used when caring for minors or incapacitated/disabled adults — legally referred to as “wards.” It allows those close to them to step into their shoes and manage their finances (a guardianship of the estate) and/or their personal health and well-being (guardianship of the person). In order to obtain a guardianship for a proposed ward, you have to be prepared to spend a lot of time and money applying for, obtaining, and sustaining a guardianship.
If you have a loved one who needs financial and decision-making support, or if you’re preparing for your own future when planning your estate, you should know that guardianship is not your only option. Fortunately, a probate attorney can help you explore many planning options that avoid the need for a guardianship of the estate and/or person altogether. These services and rules are cheaper and easier alternatives to guardianship. Before jumping into anything, it is important to review all of the possible alternatives to make sure an unnecessary guardianship isn’t created – something courts have been keeping a closer eye on recently.
What are some alternative options?
Some methods of planning ahead to avoid the need for a guardianship include:
- Medical Power of Attorney: Having a valid medical power of attorney in place allows you to appoint agents to make medical decisions for you in case you cannot make them yourself. In the context of a guardianship, this document can avoid the need for a guardianship of the person, as the medical power of attorney already provides your agents the authority they need to make medical decisions for you.
- Statutory Durable Power of Attorney: Sometimes referred to as a Financial Power of Attorney, this document allows you to appoint agents to make financial decisions for you in case you cannot make them yourself. Much like the Medical Power of Attorney, the Statutory Durable Power of Attorney can avoid the need for a guardianship of the estate, as you have already given authority to your appointed agents to manage your financial affairs.
- Directive to Physicians: Also known as a “Living Will,” this document allows you to make known your decisions regarding end-of-life scenarios involving life support, or the lack thereof. This avoids the need to appoint a guardian of the person to make the same decisions.
- Create a Trust: There are a large number of general and specialized trusts that a probate attorney and tax planner use to ensure that assets put into the trust are managed and taken care of, even if you yourself aren’t able to. These types of trusts range from general simple trusts to highly specialized special needs and management trusts.
Are there any other legal solutions I should know about?
Even if you find yourself in a position where no advanced planning was made, there are still other alternatives to creating a guardianship based on the specific situation, such as:
- Surrogate Decision-Making: Based in the Texas Health and Safety Code, this allows for non-emergency medical decisions to be made for incapacitated individuals who are either in a hospitals or nursing home without the necessity of a guardianship. The person who makes the surrogate decision is based on a priority list stated in the code itself, including spouses, adult children, and parents, all the way down to clergy members.
- Authorization Agreement for Non-Parent Relative: Based in the Family Code, this allows for a parent to authorize a grandparent, adult sibling, or adult aunt or uncle to have decision-making authority for a minor child for healthcare, insurance, school enrollment, and many other areas.
- Convenience Accounts: If an incapacitated person has a convenience account with a bank that names another co-signer, in lieu of a guardianship of the estate, the named co-signer instead has ability to help pay bills and handle other banking business.
Find a Probate Attorney in Fort Worth for Help Navigating Guardianships and Estate Plans
It is very important to know all of your options when contemplating the need to create a guardianship. These planning strategies and alternatives can avoid the need to unnecessarily create a guardianship and can save you and your loved ones a lot of effort and resources.
If you are trying to legally care for a minor child or incapacitated adult, or would like to make arrangements to avoid the need for a potential guardianship in the future, Lovelace Law can help. Our Fort Worth law firm and Burleson law firm include experienced probate attorneys that can answer any estate planning questions you may have. Don’t try to manage the legal system yourself. Contact us today for a free consultation.
