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As a Texas attorney who helps many families with their estate planning, I often get asked about guardianships and powers of attorney. Both provide the ability to have authority over a loved one, but their creation are quite different. I’ll cut to the chase – Powers of Attorney are a far better choice than Guardianships, when there is a choice.
A Power of Attorney (POA) is a seemingly simple document executed by a person granting authority over some aspect of their life, such as financial, legal, or medical decisions. A Guardianship, on the other hand, requires petitioning a Court to have a Judge appoint an individual to be the guardian over another person (the Ward) due to the Ward no longer having the capacity to care for themselves.
A POA is usually part of an estate plan. When creating the right POA, it is important to determine the type that best suits your goals. There are general POAs or specific POAs. A general POA allows the appointed person to make any decision on your behalf with some exceptions. Keep in mind that some businesses won’t accept a general POA, and they aren’t required to accept them. A special POA, often called a limited POA, gives the appointee the ability to do only those powers listed within the document. Some powers require very specific verbiage, as outlined by Texas statute. A POA can be durable or non-durable, which means that it continues to be in effect if the grantor becomes incapacitated or is instantly revoked. In Texas, a POA can be springing – which means it is effective upon an event occurring as specified in the document. Given all the options, a POA is often best prepared by an attorney to ensure all aspects of your goals are met.
The most important distinction is that a POA must be signed by the person giving the authority while that person has the mental capacity to grant such permission. Once that person loses the capacity, the Guardianship process is the only choice.
The Guardianship process includes filing a petition and notifying all interested parties – generally close family members. This can sometimes cause rifts between siblings when one isn’t ready to admit that mom or dad are in such poor mental or physical health. Evidence is presented to the Judge to show that the Ward is incapacitated and that alternatives to guardianship are not feasible by clear and convincing evidence. Once the Judge determines that a guardian is needed, then those interested in being appointed try to convince the Judge of their superior qualifications and reasons to be selected. Those proceedings can get volatile! After the Court appoints the guardian, the Court will provide continuous oversight and mandate the guardian file various reports detailing their actions. Additionally, the Ward will lose significant rights.
One main goal of every estate plan is to ensure that a person is properly cared for as they age. The Guardianship process can be very costly and deplete the estate’s assets. It is far simpler and more cost effective to execute the applicable power of attorney, while a person has the mental capacity to do so.
A POA and a Guardianship involve appointing someone to make decisions on behalf of another, they differ significantly in how they are created, scope of authority, and oversight. POAs are always a better choice, when there is a choice.
By creating a comprehensive estate plan, you are in control. You can protect yourself and avoid potential family conflicts. While estate plans must be tailored to your unique circumstances, the goal of every estate plan is the same – ensure you are cared for, appropriately provide for loved ones, minimize taxes, reduce or eliminate the need for probate, and distribute your assets according to your wishes.
SimpleLawTX understands how to optimize your Texas estate planning. Our experienced team specializes in crafting customized estate plans that reflect your specific needs and desires. Whether you're seeking to protect your loved ones, avoid conflicts, or ensure that your assets are distributed according to your wishes, SimpleLawTX is here to help. Contact us today to schedule a consultation and take the first step toward securing your family's future. Feel free to contact us via our website https://www.simplelawtx.com/, phone 281-697-6678, or email contact@simplelawtx.com.
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