In Texas, a guardianship or conservatorship is designed to protect the interests of adults who cannot make decisions for themselves. A guardian or conservator is appointed to act on behalf of another person, known as a ward, who needs assistance with managing finances, healthcare, living arrangements, and daily affairs. While guardianships and conservatorships involve court-appointed individuals taking charge of another’s affairs, a durable power of attorney (DPOA) allows individuals to appoint an agent who makes important decisions on their behalf.

UNDERSTANDING KEY DIFFERENCES

Opting for a DPOA can prevent the need for a formal guardianship or conservatorship, offering a more streamlined and cost-effective way to ensure your wishes are upheld.

Additionally, the responsibilities of guardians and conservators vary significantly. For example, a conservator might have authority over medical decisions but not decisions regarding living arrangements. Conversely, a guardian might be empowered to make specific financial decisions or manage property on behalf of the ward.

Durable Power of Attorney in Texas

A DPOA is a legal document that an adult establishes with the help of an attorney, allowing the designation of an agent to make important decisions for them.

Benefits of including a DPOA in your estate plan include:

• Ensuring that a trusted individual makes important decisions for you if you lose capacity
• Providing peace of mind that your affairs will be handled according to your wishes
• Avoiding the need for a court-appointed guardian or conservator
• Allowing you to maintain control over your future, even if you are unable to make decisions for yourself

Protecting Your Freedom

By preparing durable powers of attorney before a crisis occurs, you avoid the need for guardianship. DPOAs provide direction for decision-making based on your wishes by the designated agent(s). Without these documents, the court appoints a guardian or conservator, often a spouse, adult child, or another family member.

Here are the key roles and responsibilities that DPOAs cover:

1. Financial Decisions: A DPOA for finances allows the appointed agent (attorney-in-fact) to manage financial matters, including banking transactions, investments, real estate transactions, and other financial obligations on behalf of the principal (the person who executed the DPOA).
2. Legal Decisions: Depending on the specific powers granted in the DPOA document, the agent may have the authority to make legal decisions such as signing contracts, initiating or defending lawsuits, managing business affairs, and handling tax matters for the principal.
3. Healthcare Decisions: In Texas, healthcare decisions typically fall under a separate legal document known as a Medical Power of Attorney (MPOA) or Advanced Directive. However, a comprehensive DPOA may include limited authority related to healthcare decisions if specifically outlined in the document.
4. Personal Affairs: DPOAs cover a broad range of personal affairs, including managing government benefits, accessing safe deposit boxes, and handling insurance matters.

It’s important to note that DPOAs must be carefully drafted to clearly outline the extent of the agent’s authority. They can be broad, granting the agent general powers to act on behalf of the principal, or limited to specific tasks or decisions. Additionally, DPOAs can be effective immediately upon execution or become effective only upon the principal’s incapacity (durable).

Court-Ordered Conservatorships and Guardianships

In contrast, conservators and guardians are appointed by court order to manage the affairs of individuals who can no longer make decisions regarding healthcare or finances. Without a DPOA reflecting your wishes, the court must appoint a conservator or guardian.

Responsibilities of Conservators and Guardians

In Texas, a guardian of the estate manages financial matters, while a conservator of the person oversees personal and medical decisions. In less complex situations, one person may manage both estate and personal or medical conservatorships. Both types of conservators and guardians are subject to court supervision and must periodically report their actions to the court.

Court supervision acts as a safeguard against mismanagement or exploitation of the ward. Frequently, conservators and guardians must seek court permission before making major decisions, such as terminating life support, administering medications, or selling real estate. Additionally, a financial guardian often must post a bond as an insurance policy to protect the ward’s estate from mismanagement.

A conservator or guardian will serve until the court issues an order ending their responsibility, which may occur due to:

• The ward’s death
• The ward no longer requires assistance
• Exhaustion of the ward’s assets
• The conservator or guardian’s inability to continue or resignation
• A successful legal challenge by the ward leading to the court’s removal of the conservator or guardian

WORK WITH AN ELDER LAW ATTORNEY

To avoid unwanted conservatorship or guardianship, draft your DPOA while you are young and in good health. Although it may be unpleasant to consider, living circumstances change unexpectedly. You can easily establish a durable power of attorney when executing other estate planning documents, such as a will.

As your estate planning attorney, I will help you address any concerns regarding potential physical or mental illness and assist in selecting the right representative, someone you trust to make decisions in your best interest. This preparation ensures future decisions will reflect your wishes. If you are dealing with a loved one who is no longer of sound mind, I can help guide you through the guardianship process as well.

Bromlow Law, PLLC and Laura L. Bromlow, are dedicated to the practice of Elder Law and Estate Planning. Our practice focuses solely on working with clients in these and closely related legal fields. Laura L. Bromlow is a Certified Elder Law Attorney with the National Elder Law Foundation. Bromlow Law, PLLC strives to enhance communication among family members and loved ones and to keep them all out of conflict so they can stay out of court. We want to help you keep your close circle safe!

Please contact our office today at (281) 665-3807 to schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.