Avoiding a Guardianship in Older Adulthood for Texas Residents

 Posted on February 17, 2022 in Estate Planning and Probate

Many older adults would prefer to avoid being placed under guardianship, and for good reason. The process can be expensive, possibly embarrassing, and you have little or no control over it once it has begun. Fortunately, there are ways to head off this possibility if you plan ahead just a bit. An estate planning attorney can help you take important steps to avoid the need for guardianship in the future. 

Why Avoid a Guardianship?

A guardianship proceeding takes place in open court and generally involves the introduction of evidence regarding your physical and mental health and status. These things are highly personal, and the loss of privacy alone is enough reason for many to seek an alternative. Aside from that, the person to be placed under guardianship does not have a say in who their guardian will be. This is decided by a judge who does not know you, your family members, or your preferences.

The process can become quite expensive as well. The court will continue to supervise the guardianship after it has been granted, which can easily add up to thousands over the years.

What Steps Can I Take to Avoid Future Guardianship Proceedings?

Many adults will experience some type of incapacity during their older adulthood. While you may be taking steps to protect your health and stave off the effects of aging, conditions like Alzheimer’s or dementia can happen to anyone. Should this happen to you, you will likely need someone to help make decisions about your care or manage your finances for you. This part is simply unavoidable, but there are things you can do now to take control of that situation - should it arise - in advance. 

This is called “incapacity planning,” and it is crucial. You may want to use documents such as: 

• Health care power of attorney - With this document, you can appoint the person you want to take over making decisions about your care when you are no longer able to. It is better to choose someone you trust than leave it to chance with a court.
• Financial power of attorney - You can use a separate power of attorney to name someone you would trust to manage your money and property for you if needed. Both health care and financial powers of attorney can be written so that they have no effect until you are determined - privately, by your doctor - to be incapacitated.
• HIPAA waiver - In order to make well-informed decisions about your care, your doctor will need to be able to speak with your power of attorney and disclose some medical information about you.
• Advance directives - You are able to declare in advance what types of medical interventions you would or would not if you were terminally ill and unable to understand your condition or the choices you have. This document is binding on your health care team and can help guide your health care power of attorney.

Remember to speak with the people you are considering making your powers of attorney to make sure they are prepared to take on the task. 

Call an Incapacity Planning Attorney in Bexar County

If you are ready to start making these important choices for yourself, Geoff Mayfield, Attorney at Law can help. Our experienced and compassionate San Antonio incapacity planning lawyers will walk you through creating the documents you need. Call 210-535-0870 for a free consultation.

Source: 

https://www.txcourts.gov/media/1359759/Adult-Guardianship-Guide.pdf