Sometimes guardianships cannot be avoided, and the only way you can protect a loved one is by appointing a guardian. Our last post discussed ways that guardianships can be avoided. In contrast, this post will highlight examples of when guardianships in Dallas, Texas are actually desirable and advisable. The examples below illustrate just a few of the situations in which a guardianship is necessary.
–Unrecognized powers of attorney. As previously mentioned, sometimes a person has already lost capacity, so they cannot validly execute a power of attorney. There are other reasons a power of attorney may be ineffective. A bank may refuse to honor a power of attorney because the signature appears suspicious.
–Susceptibility to Bad Actors. Further, while powers-of-attorney may grant power, they do not take power away from the principal. So an incapacitated person may still act contrary to their own best interest, even if they signed a power of attorney—for example, by falling prey to scams or signing unfavorable contracts. In these cases, a guardianship of the estate may be the best way to protect the incapacitated person.
–Competing powers of attorney. Picture an elderly woman afflicted by dementia. She has a son and daughter who do not get along. Both the son and daughter want physical possession of their mother. One day, the son gets his mother to sign a power of attorney and uses it to change his mother’s residence. The daughter, unhappy with this arrangement, takes her mother out for lunch, then gets her to sign a different power of attorney granting the same power to the daughter. The son and the daughter are effectively playing tug-of-war with their own mother. When a guardianship is created, all powers of attorney are canceled automatically, and one person gets the ultimate authority to act in the best interest of the incapacitated person. In this scenario, a guardianship may be the only option to resolve the dispute between son and daughter.
–Different medical options. In this hypothetical, a young adult man suffers a traumatic brain injury and falls into a coma. The man’s mother and father dutifully stand by their son, but due to a hostile divorce, can barely stand next to each other. The mother wants an aggressive, experimental medical treatment for her son. The father prefers a more conservative approach. If the parents cannot resolve their differing opinions, then they may need to file for guardianship of the person. A probate court will appoint a guardian of the person with definitive authority to make this difficult medical decision.
Guardianships may be necessary or advisable for any number of reasons. Our Dallas probate lawyers regularly assist clients with advice and evaluations of guardianship options, including the necessity of a Texas guardianship. If you need assistance with guardianship issues please contact us. Our attorneys are ready to assist clients in Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.
In our next post, we will address the reasons and legal procedures for challenging a guardianship. Texas law provides several different ways to challenge whether a person needs a guardian or dispute the choice of guardian. These processes can be invaluable to parties opposing unjust or invalid guardianships.