We talk about guardianship a lot with our clients, and there are some very good and necessary reasons why this must happen and should be considered during estate planning. For example, a loved one may be permanently disabled and unable to make certain decisions regarding their health, safety, finances, or even their living situation. A guardian — usually a trusted family member — could then step in and take on all or a portion of those responsibilities.
With that said, I address in my book, Who Gets Your Stuff When You Die, that guardianships are a serious matter. Because rights are being taken away from one person and given to another, guardianship should be avoided if there is a concern that the loved one’s best interests are not considered or when you can use less-restrictive means. Fortunately, there are some guardianship alternatives.
A quick word on how guardianship is established
To establish a guardianship, file a petition in probate court. The court will then determine if the individual named in the petition is, in fact, incapacitated in a way that makes them need a guardian. If guardianship is necessary, this will come as an order from the court, and all authorities given to the appointed guardian will be expressly stated.
There are several types of adult guardianship:
- Guardian of the person
- Guardian of the estate
- Guardian of the person and the estate
In many cases, guardianship is unavoidable. This includes when an individual loses capacity before signing necessary documents or is highly susceptible to financial or personal exploitation. But like we said earlier in this post, guardianships are a serious matter because the rights given to the guardian are taken away from the ward (your loved one). There have been abuses where appointed guardians have managed to isolate their loved ones from caring family, diverted funds to their own use, and neglected to provide necessary care and even medical attention.
If there are alternatives in play, they should be weighed against the proposed benefits of guardianship.
7 alternatives to guardianship
- While your loved one still has capacity, he or she can create documents that may obviate the need for a guardian in the future. This can include creating a living trust, and money can be managed under a Power of Attorney.
- Less-restrictive options include supported decision-making may be possible if the incapacitated person has a relative or other person who can help explain choices and help the person make decisions.
- Identify someone to help manage money, including paying bills. Some programs in Texas provide money management services that could be extremely useful.
- A joint checking account may be set up to allow another person to assist in managing funds.
- A representative payee can get government benefits for the incapacitated person and open a bank account for them.
- In some cases, it is possible to help a person name someone to make healthcare decisions for them.
- There are a number of supportive services for people with disabilities that make it possible for them to manage independently. These include Home Health Care, Meals on Wheels, transportation services, emergency call devices, and other special services for people with disabilities.
The best way to avoid the need for guardianship is through preventative steps that can be taken by a person before they become disabled. Your estate planning attorney can assist with crafting the necessary documents, answer any questions you may have, act as a resource for other valuable information, etc.
Call Leigh Hilton PLLC today!
Do you have questions about guardianship and whether it or its alternatives are right for you or a loved one? Having a competent estate planner in your corner will help you and your family navigate the often overwhelming waters that come with protecting everything you own and everyone you love. That is our job, and we would like to think we do it better than anyone else. Please call Leigh Hilton PLLC so that we can help ensure you and your family are taken care of in the best way possible.
Leigh Hilton PLLC wants to be your first call every time for any estate planning need. We look forward to serving you.