In 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
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.
The legal information in this blog entry is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, nothing contained in this article is intended to create an attorney-client relationship with any reader. This article and website are made available by Waldron & Schneider for educational purposes only and to give basic information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and Waldron & Schneider. The article and website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. For more information or questions you can contact us and one of our attorneys will be in touch soon.