Things to know about Texas guardianship

This post is part of a multi-post series of articles dealing with things to know about Texas guardianship.

My doctor said that I may become incapacitated. Is there anything I can do to avoid a guardianship?

Yes. You can sign disability planning documents such as powers of attorney to designate agents to make decisions for you in the event you become incapacitated. Many of these documents are on forms which have been adopted by the Texas legislature for use by Texans. These documents allow you to designate agents to make both property decisions and medical decisions for you. Designating an agent can be tricky and dangerous, however. Lawyers and judges hear stories of persons who were taken advantage of by their agents.

For these reasons, you should seek a lawyer’s advice before signing a power of attorney or other disability planning document. One alternative to using a power of attorney for property is to create a trust benefiting yourself and naming the person you trust to be trustee. Trusts often have more structure and safeguards than powers of attorney. However, even with trusts the beneficiary is vulnerable to trustee abuse. The main reason guardianships are expensive is that there are safeguards in place to protect the ward. Trusts and powers of attorney are less expensive alternatives largely because the safeguards are missing, so persons using them must place a great deal of trust and confidence in the agent or trustee named.

 My spouse is dead, and I worry about who will take care of my kids and their property when I die. What can I do?

A well-drafted will or trust will contain a trust to hold your children’s property until they are sufficiently old to handle it themselves. You can designate a guardian of the person and estate for your minor children (and, in some cases, for your adult disabled child) either in your will or in a form meeting specific statutory requirements.