Declaration of Guardian in the Event of Later Incapacity or Need of Guardian

When you think of naming a guardian you normally think it is only for the benefit of your minor children.  But this guardian is for YOU!  None of us wants to contemplate that we might one day need a guardian appointed to take care of us and to manage our assets if we become very significantly incapacitated.  To try and prevent the need for a guardianship we name agents in our Medical Power of Attorney and Statutory Durable Power of Attorney to care for us and our assets.  But sometimes, your condition may reach the point where those documents are no longer enough and one of your family members is forced to turn to the court to name a guardian.  The Declaration of Guardian in the Event of Later Incapacity or Need of Guardian allows you to let the court know who you would want to serve as your guardian.  It also provides you with a way to inform the court who you DO NOT want to serve as your guardian. Like your Will, this document must be presented to the court if a guardianship becomes necessary.   

The State of Texas is reluctant to open a guardianship for an adult because such a procedure is essentially restricting your civil rights.  Texas requires that all other alternatives be considered before seeking a guardianship.  However, once a guardian is appointed for you, your Statutory Durable Power of Attorney and your Medical Power of Attorney are no longer in effect.  All of the powers provided to your agents in those documents now belong to your guardians.

In Texas, there are two distinct guardians.  One is the guardian of your person and the other is the guardian of your estate (assets). Being a guardian of the person does not necessarily mean that person must provide you with physical care. It means that person will help decide what type of assistance or care you need.  This could be in your own home, the home of the guardian or in a facility that specializes in the type of care and services you require.

The duty of the estate’s guardian is to handle the financial and “business” aspects of your life.  He or she is responsible for making sure your bills are paid, and that any benefits for which you qualify have been applied for and are being utilized in a manner that is in your best interest.  

It is not required that the guardian of your person also be the guardian of your estate.  You may have a loved one who is compassionate and a wonderful care-giver but cannot handle finances.  Likewise, you may have a loved one who is excellent at taking care of finances but gets queasy at the first sign that someone is not physically well.  In such a case, you would appoint the loved one who is compassionate as the guardian of your person and the loved one who is good with finances as the guardian of your estate.  Sometimes you have a loved one who excels in both areas and in that situation the same person may be named as the guardian of both your person and your estate. 

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