Power of Attorney- Guardianship

power of attorneyIn Texas, a person may make application to be appointed the Guardian of a proposed
Ward’s person (physical well-being) and a proposed Ward’s estate (financial well-being).

Many times this is done when the proposed Ward, whether due to age or health, is no longer able to take care of themselves or manage their finances.

However, prior to the creation of a guardianship, the legislature mandated that a probate court must consider alternative to guardianships and supports and services and other less restrictive
means.

One of these less restrictive means that a court will look for is whether the proposed ward has executed any type of estate planning documents, including a Durable Power of Attorney.

A Durable Power of Attorney provides for all acts done by the attorney in fact (agent) to
have the same effect, inure to the benefit of, and bind the principal and the principal’s successor in interest as if the principal was not disabled. TEX.EST.CODE §751.001ff.

If the proposed Ward does have a Durable Power of Attorney, the court will look to see
who the proposed Wards had appointed to be their agent and whether that person appointed is the same person who is making application for guardianship.

Even though the proposed Ward may have a Durable Power of Attorney, there may be issues with the Durable Power of Attorney that may warrant the guardianship. One main issue that occurs is when a third party institution, such as a bank or financial advisor, may not accept the executed Durable Power of Attorney and the proposed Ward is unable to execute a new Durable Power of Attorney. In that instance, it would be beneficial for the creation of a guardianship of the estate.

If you are interested in learning more about Estate Planning documents as they may related to Guardianships, please call Waldron & Schneider to schedule an appointment for a consultation with one of our experience attorneys.

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