Gaurdianship

In Texas, the appointment of a guardian is a legal process undertaken when an individual is unable to manage their personal or financial affairs due to age, illness, or disability. However, with foresight and proper planning, one can often avoid the need for guardianship, maintaining control and privacy in personal matters.

Here are steps you can take to prevent the necessity of a guardianship:

1. Create a Durable Power of Attorney:

A Durable Power of Attorney (DPOA) allows you to appoint an agent to manage your financial affairs if you become incapacitated. This legal document can be tailored to your specific needs, granting as much or as little power as you see fit.

2. Establish a Medical Power of Attorney:

Similar to a DPOA, a Medical Power of Attorney (MPOA) allows you to designate an agent to make healthcare decisions on your behalf should you become unable to do so.

3. Draft a Directive to Physicians:

A Directive to Physicians, commonly referred to as a Living Will, outlines your preferences for medical treatment in scenarios where you might be unable to communicate your wishes.

4. Set Up a Revocable Living Trust:

A Revocable Living Trust is a flexible estate planning tool that allows you to manage your assets during your lifetime and provides instructions for their distribution upon your death or incapacity. Unlike a will, a living trust operates during your lifetime, allowing for the management of your assets should you become incapacitated.

5. Designate a HIPAA Authorization:

By signing a Health Insurance Portability and Accountability Act (HIPAA) authorization, you ensure that your chosen individuals can access your medical information, facilitating informed decision-making on your behalf.

6. Engage in Family Discussions:

Open communication with family members and loved ones about your wishes and the plans you have put in place is crucial. It helps prevent confusion and ensures everyone is on the same page should a crisis occur.

7. Consult with an Experienced Attorney:

Navigating the legal landscape of estate planning and incapacity planning can be complex. Consulting with an attorney experienced in these matters is invaluable for ensuring that your plans are comprehensive and legally sound.

Proactive planning is key to maintaining autonomy and ensuring your wishes are respected, regardless of what the future holds. Our law firm specializes in crafting personalized estate and incapacity planning solutions. If you have concerns about guardianship or wish to explore preventive measures, we invite you to contact our office. Our seasoned team is here to provide the guidance and peace of mind you need as you plan for the future.

Naming a person as your financial power of attorney (agent) is an integral part of a comprehensive estate plan. This selection allows the agent to make important financial decisions on your behalf during times of potential incapacity. But what does it mean FOR the person named? There are certain duties and obligations assigned to your agent, and it is important that both parties understand these duties and obligations.

DUTIES AND RESPONSIBILITIES OF A FINANCIAL POWER OF ATTORNEY (AGENT)

When accepting the authority granted under a financial power of attorney, a fiduciary relationship is established with the principal (the person represented) and the agent. This is a special legal relationship that imposes duties which continue until the agent resigns or the power of attorney is terminated, suspended, or revoked by the principal or by operation of law.

The agent generally has the responsibility to:

1. act in good faith;
2. do nothing beyond the authority granted in the power of attorney;
3. act loyally for the principal’s benefit;
4. avoid conflicts that would impair the ability to act in the principal’s best interest; and
5. disclose your identity as an agent when you act for the principal by writing or printing the name of the principal and signing your own name as “agent” for that person.

In short, you are being named to stand in the shoes of the principal to act as they would act if they were able.

The Estates Code further enumerates the responsibilities of a financial agent. The Durable Power of Attorney Act (Subtitle P, Title 2, Estates Code) lays out specific instructions for agents:

1. maintain records of each action taken or decision made on behalf of the principal;
2. maintain all records until delivered to the principal, released by the principal, or discharged by a court; and
3. if requested by the principal, provide an accounting to the principal that, unless otherwise directed by the principal or otherwise provided in the Special Instructions, must include:
   • the property belonging to the principal that has come to your knowledge or into your possession;
   • each action taken or decision made by you as agent;
   • a complete account of receipts, disbursements, and other actions of you as agent that includes the source and nature of each receipt, disbursement, or action, with receipts of principal and income shown separately;
   • a listing of all property over which you have exercised control that includes an adequate description of each asset and the asset’s current value, if known to you;
   • the cash balance on hand and the name and location of the depository at which the cash balance is kept;
   • each known liability;
   • any other information and facts known to you as necessary for a full and definite understanding of the exact condition of the property belonging to the principal; and
   • all documentation regarding the principal’s property.

Serving as a financial power of attorney (agent) is a serious responsibility. It is important to keep great records, and to make sure each transaction you make on behalf of the principal is in line with the fiduciary duty you have been granted.

Naming an agent before times of crisis is very important. By doing so it is possible to avoid long drawn-out court processes when it comes time to pay bills, access bank accounts, etc. during times of emergency. Just remember – power of attorney documents CEASE to have power when the principal passes away. Contact Crain & Wooley if you have questions or concerns regarding naming an agent or being named AS an agent.

No two Estate Plans are the same. Each person has unique needs that must be met to form a complete plan. This is especially true for single parents. Raising a child is a tremendous responsibility. Raising a child alone is an even greater challenge. When I work with a single parent, there are at least two specific issues we must tackle, and these are not always easy discussions. 

GUARDIANSHIP

Guardianship (custody) is possibly the most difficult topic to talk about, but it is of utmost importance. There are two situations in which custody must be addressed: temporary or permanent disability and at time of death. 

Disability: The Social Security Administration estimates that at least 1 in 4 Americans will experience a temporary or permanent disability situation that leaves them unable to care for themselves or their loved ones. Providing, IN ADVANCE, for who will care for your children during these times lessens the stress of an already painful situation. Completing an official Declaration of Guardian puts “agents” (caretakers) in place to pick up the torch and carry on with paying bills and making medical and general life decisions in your absence.

Death: While we hate to talk about the possibility of not raising our children, the unfortunate reality is parents of all ages pass away. If you were to die before your child reaches the age of 18, there are specific decisions that need to be made IN ADVANCE regarding guardianship (different than those for times of temporary or permanent disability) as well as addressing details of how you want your child raised. Minor children cannot directly inherit assets of any kind; it is important that you detail your specific intent regarding how the proceeds of your estate should be managed to provide for your child’s care. Improper planning can lead to the proceeds of your estate being tied up in the Court’s registry or being mismanaged by an irresponsible family member. Simply having a will and naming your minor child as the beneficiary is just not enough and often leads to disastrous results. 

LIFE CHANGES

Life has a way of changing rapidly. One minute a child is starting kindergarten and the next graduating from college. As a single parent, it is very important to keep your Estate Plan up to date thereby reflecting life’s changes. Two of the most common life events that necessitate an update are familial structure changes and children reaching adulthood.

Familia Structure: If you get married or enter into a co-habitation situation, you will want your Estate Plan to address your spouse/partner, you premarital/pre co-habitation assets as well as your child and any potential step-children. If you don’t do this, accidental disinheritance can take place, assets can become co-mingled, spouses/partners can be forgotten, and guardianship arrangements can become outdated. 

Adulthood: Once your child reaches adulthood, you want to make sure your plan addresses the appropriate age at which they would DIRECTLY inherit from your estate. A customized plan noting distribution desires like annual stipends, education funds and more becomes very important once your child reached 18 years old.

Many single parents rely on informal agreements in which friends and family members say, “if you get sick or die, I’ll take care of the kids.” Bluntly, these agreements are not good enough. Taking the necessary steps to formalize a comprehensive Estate Plan including a Declaration of Guardian in Advance is the only way to legally provide a care plan for your child. 

As a single parent, you have a great responsibility. Check Estate and Guardianship Planning off your list.

Have questions? Contact us today!

Many of us know someone who suffers with a form Dementia, the most common being Alzheimer’s Disease. Dementia in all its forms slowly rips independence away from those who suffer its ravages. While no amount of planning can eliminate the emotional pain encountered when a family member slips away, proper financial and legal planning can assist caregivers with the daily practicalities of life thereby alleviating a portion of stress and anxiety.

Caring for a person with dementia can last years, and there are few outside resources to help pay for this kind of care.

• Health insurance does not cover assisted living or nursing home facilities, or help with activities of daily living.
• Medicare covers some in-home health care and a limited number of days of skilled nursing home care, but not long-term care.
• Medicaid, which does cover long-term care, has very strict eligibility requirements; the person’s assets must be spent down to almost nothing to qualify.
• VA benefits for Aid & Attendance will help pay for some care, including assisted living and nursing home facilities, for veterans and their spouses who qualify.
• Those who have significant assets can pay as they go. Home equity and retirement savings can also be a source of funds.
• Long-term care insurance may also be an option, but many people wait until they are not eligible or the cost is prohibitive.

However, for the most part, families are not prepared to pay these extraordinary costs, especially if they go on for years. As a result, family members are often required to provide the care for as long as possible.

What Can Be Done to Support the Patient and the Family?

1. PLAN NOW! Having options—additional caregivers, alternate sources of funds, respite care for the caregiver—can help relieve many stressors. In addition, there are many legal options to help families protect hard-earned assets from the rising costs of long term care and to access funds to help pay for that care.
2. Watch for early signs of dementia. The Alzheimer’s Association (www.alz.org) has prepared a list of signs and symptoms that can help individuals and family members recognize the beginnings of dementia.
3. Seek assistance. Find out what resources might be available. We can prepare necessary legal documents that help maximize income, retirement savings and long-time care insurance as well as apply for VA or Medicaid benefits.
4. Take good care of the caregiver. Caregivers need support and time off to take care of themselves. Arrange for relief from outside caregivers or other family members.

Waiting too long to plan for the need for long-term care, especially for dementia, can throw a family into confusion about what Mom or Dad would want, what options are available, what resources can help pay for care and who is best-suited to help provide hands-on care, if needed. Having the courage to discuss the possibility of incapacity and/or dementia before it happens can go a long way toward being prepared should that time come.

We help families who may need long term care by creating an asset protection plan that will provide peace of mind to all. If we can be of assistance, please contact us!

The need to establish guardianship rarely emanates from a joyous occasion. Traditionally, a guardian for an adult is needed in cases of incapacity or diminishing capacity resulting from a disabling condition.

There are two primary ways to obtain guardianship for an adult:

1. Reactively file an Application for Appointment of Permanent Guardian with the court
2. Proactively complete guardianship planning documents

Reactive Guardianship Application

Upon discovery that an individual (potential ward) can no longer care for themselves, loved ones (applicant guardians) often find it necessary to become primary decision makers as it relates to health and financial matters. If a proactive guardianship plan is not in place, the concerned party must apply for guardianship in the county in which the potential ward resides. As you can imagine, the court takes requests for guardianship very seriously, and sets forth a detailed process that must be completed before the applicant guardian can begin acting on behalf of the ward.

The non-profit organization Texas Guardianship Association outlines the reactive guardianship process on its website. Here are a few highlights of this process:

The Application:

• Demographic information for self and potential ward, including social security numbers
• The “nature and degree” of suspected incapacity supported by medical testimony
• The type of guardianship sought
• The value of the proposed ward’s estate – including housing, revenue, benefits, insurances, etc.
• And much…much more

Court Investigation:

• The court may request that an investigation be performed by a court appointed investigator to determine validity of the application. The investigator will talk with the potential ward, doctors, psychologists, family members, social workers and others to determine if the application for guardianship is necessary.

Appointment of attorney and guardian ad litem:

• If the investigation supports the need for an appointment of a guardian, the court will appoint an attorney and guardian ad litem to advocate for the best interests of the ward.
• Court hearing to determine (among other topics):

• If the potential ward can adequately care for his or her physical and financial needs
• What is in the best interest of the potential ward
• Is guardian applicating qualified to care for the potential ward

Disposition of case including, but not limited to:

• Defining parameters of guardianship
• Bonding the appointed guardian
• Issuing letters of guardianship

This lengthy process is designed to fully protect the individual who may be experiencing a disabling condition. However, there is a way to be proactively in control of who becomes your guardian should you or a family member become incapacitated.

Proactive Guardianship Planning Documents

Working with a qualified attorney to craft guardianship documents allows you to proactively determine who will act as your guardian and in what capacity. For example, a specific family member may be a wonderful medical provider, but a horrible money manager. Defining roles and responsibilities before a time of crisis allows you and your guardians to clearly communicate and make plans to carry out your wishes in the event of incapacitation. Avoiding the arduous, yet necessary, process of applying for guardianship post-incapacity by settling the matter via working with an expert attorney to put a plan in place gives peace of mind for all involved.

Our firm skillfully navigates both reactive and proactive guardianship arrangements. Should you find yourself in need of crafting guardian planning documents or applying for guardianship, we are here to serve you. Schedule a free consultation with our attorneys to discuss your guardianship needs.

Agent– a person who is authorized to act on behalf of another

EstateAdministration– the process of settling an estate after someone dies

Executor– the person you designate in your last will and testament who will work with the attorney to settle your estate

GrantorTrust– any trust over which the settlor or other owner retains the power to control or direct the trust’s income or assets, resulting in the income of the trust being taxed to the settlor, rather than the trust

IncomeBeneficiary– a beneficiary who is to receive the income, as opposed to the principal of a trust

IndependentExecutor– your executor who is allowed to act pursuant to a simpler probate process because you either authorized it in your Will or all of your heirs agreed to allow the executor to serve as an independent executor. Independent executors typically do not require the court authorization to act that is otherwise required of executors.

LastWilland Testament – a legal document naming your executor and describing, among other things, who is entitled to your assets when you die

LivingTrust– a trust that you establish during your lifetime

LivingWill – a document whereby you express your intentions regarding the withdrawal or withholding of life support systems

Principal– one who directs or allows another to act on his behalf

PrincipalBeneficiary– a beneficiary who is to receive the principal of a trust upon the termination of the trust

Settlor– a person who creates a trust (sometimes called a grantor”)

Trust– a relationship resulting from the transfer of title to property to a person (trustee) to be administered for the benefit of another (beneficiary)

TrustIncome– any interest earned on the principal of the trust; the right to use trust principal such as a home

TrustPrincipal– the original money and/or assets placed into the trust

Trustee– the person appointed to hold and manage property in trust for the benefit of another

GUARDIANSHIP QUESTIONS:

Q.        If my spouse and I die together, where would our children live for the first day or week or month until a judge can determine who will be their guardian? What if there are relatives we absolutely don’t want them to live with, even temporarily?

A.        There is no simple answer to your question because where your children would live depends on when you die and where your children are when you die.

For instance, you and your spouse may be with your children when you both die, thereby leaving them without immediate supervision. Or your children may be at day care, at school, or with a babysitter, and that means the supervision they are receiving would soon be coming to an end. In these types of situations, it is likely that the police will show up and take charge.

The police would allow your children to be placed in the care of a relative or friend as long as they are convinced that person is not unfit to care for the children. The police can use the computer in their car to obtain this type of information. For instance, a relative who has a criminal record would probably not be allowed to take the children.

If your children are old enough to tell the police who to call, the police would likely do so and attempt to leave the children with the proper party. But if your children are too young to know phone numbers, addresses, or even complete names, or if no temporary guardian is available, then the police would take your children to Child Protective Services (CPS).

CPS would care for your children until a suitable family member or friend is located. CPS may place your children in foster care, if necessary, until a judge determines who the permanent guardian will be.

It may be the case that your children are already in the care of a relative or close friend when you both die. In such a situation, the police and CPS may never get involved with the care of the children. Instead, the children would most likely remain with that family until a judge makes a determination as to permanent guardianship.

You mentioned that there may be relatives you don’t want your children to live with, even for a brief period. The problem is that if the police don’t know how you feel, and if the relative otherwise checks out, the children may be placed in that person’s temporary care. Unfortunately, it is too often the case that relatives want to control the children’s inheritance, and they know funds will be available if they are acting as guardians.

You could prepare a witnessed and notarized document stating your intention regarding who you do and do not want to serve as guardian. In fact, that information is often contained in a person’s will. But the problem is that this document will probably not be available when it’s needed. Most people don’t think to send their kids to school, daycare, or a friend’s house with a copy of their will or other legal documents, and even if they did, the police may not be inclined to rely on the document’s validity.

If the police show up and several relatives or friends demand to take care of the children, the police will most likely not make a choice between them, but will instead deliver the children to CPS. An investigation will then be conducted by CPS to determine who is most suitable to take care of the children until a guardian is formally named by the court.

You should be sure to state in your will who you want to serve as the guardian of your children in the event you and your spouse pass away before your children are legal adults–age 18 in Texas. You can name any person you want, and you can also provide a list of persons in order of preference. You can even name two persons to serve, but they must be married to each other.

Please note the answer to your question may be different if you don’t live in a large Texas city.

Secure peace of mind by talking with Jacob or Justin. Call today to book your appointment now. Remember, your first 1-hour meeting is FREE.