“Most people have no clue exactly how complicated and expensive they are,” writes Texas family law attorney Adair Buckner, referring to guardianships. There are certain estate planning tools that can avoid having to create a guardianship, Buckner adds, but if those tools have not been used before the need arises, there may be no other option.
At Geyer Law, we agree. As experienced elder law attorneys, we advise clients to name an attorney-in-fact while they are in sound health, in advance of unexpected mental or physical incapacitation. This ensures that someone is able to step in to make financial or medical decisions for the individual should the need arise, and avoids the need for a court to step in and appoint a legal guardian in most cases. Both healthcare and financial power of attorney documents help clients be prepared for all contingencies without needing to give up any control over their present affairs..
What, exactly, is the function of a guardian?
A guardian is entrusted with the responsibility of making key financial, medical and lifestyle decisions on their dependent’s behalf. If no prior estate planning documents have been set in place, a guardianship will be established by court order, with the court supervising the guardian to assure proper actions are actions are taken on behalf of the “ward”. The court must first find that the ward is incapacitated prior to the appointment of a guardian.
One key reason guardianships are crucial legal tools, findlaw.com explains, is that investments and real estate can lose their value if left unmanaged. There are also bills to pay, so that excessive liabilities do not accrue during the period of incapacity. “Suppose, for example, that a person is put into a coma from a car accident. Unless that person has a durable power of attorney and medical directives already in place before the accident, the court will appoint a guardian to make both financial and non-financial decisions for the comatose person.”
Guardianships are also needed to provide for the care and custody of minor children. If no prior arrangements have been put into place for minor children, as Buckner stresses, not only must legal fees be paid by persons seeking to be appointed guardian, a guardian ad litem (court-appointed representative) may be needed to ensure the best interests of the child and guide the court in selecting an appropriate guardian. Court-appointed guardians ad litem are typically paid for the work they do.
As part of the planning process for clients with minor children, at Geyer Law we help parents establish and fund trusts for the benefit of their children, naming someone they trust to serve as Trustee to ensure proper management and distribution of funds for minor children. The appointed Trustee may be the child’s guardian, the person having physical care and custody of the minor child, or be a different person or entity altogether.
Whether you are planning for retirement or a new baby, at Geyer Law we can assist your family in putting a proper plan in place to ensure your goals are met and the people you want in charge are named in the most cost-effective manner.
– by Jennifer Hammond, Associate Attorney at Rebecca W. Geyer & Associates