Mom’s Incapacitated: Do I Need A Guardianship?
As the population in America grows older, it’s becoming common for adult children to be called upon to care for their sick or aging parents. Frequently, this begins with the adult child helping with bills, doctors appointments, medication, or transportation. Eventually, this can evolve into almost a full-time job of caring for their parent that can include being the sole decision maker for medical and financial issues (and, at times, even requiring the adult child to move in with the parent – or vice versa – to care for their moment-to-moment needs). Surprisingly, even despite the life-altering commitment, these adult children make to their parents, occasionally the law stands in the way of the children being able to make quick decisions regarding money or medical decisions for their parent.
Consider this scenario: Molly is caring for her 85-year-old mother with Dementia. At first, Molly would have mom sign checks from her account to pay bills and would accompany her to the doctor’s visits. Unfortunately, a bank officer recently found out that Molly is not on the account and is now refusing to honor checks without speaking to the Mother. Also, the doctor has began to indicate that Molly should consider a guardianship over Mom so that Molly can formally sign a consent to treatment. Molly wants to help her Mom but has no clue what to do from here. Molly wants to consult a lawyer to learn about her rights and how to protect Mom.
If Molly were to talk with a lawyer, she would learn that the law provides that when most people attain certain ages, they are vested with certain civil rights. For example, when someone turns 18, they become a legal adult for most purposes. They can vote, enlist in the military, and take legal action. When that same person attains the age of 21, they can elect to drink alcohol. Without judicial action, these rights remain with each person (even if, medically, they become incapacitated). So, because the person (in this case, Mom), is vested with her own rights (which include the right to make her own decisions), what happens if she can’t make decisions? Fortunately, the law provides two solutions.
First, hopefully, Mom was smart enough to visit a lawyer to execute an estate plan that included both a Medical Power of Attorney as well as a General Durable Power of Attorney. In essence, powers of attorney are documents in which a person can appoint someone else (termed an “agent”) to make decisions for them if they are unable to do so themselves. A Medical Power of Attorney (also known in some states as a “Health Care Proxy”) allows someone the legal right to make most medical decisions for someone else and a General Durable Power of Attorney is a document which provides that someone else has the legal right to make financial or property decisions for the principal even if incapacitated. Having these documents is a simple, easy, and low-cost way to ensure that you’re protected. If Mom has those, Molly may simply present them to the bank and physician and everything should continue running smoothly with Molly in charge. The catch: Mom would have needed to execute those documents while she was still competent. If she did not, and is no longer competent, that option is off the table, and Molly will need to consider a legal guardianship.
Second, in Texas, a guardianship proceeding allows an interested person (such as a relative or friend) to petition a court to declare Mom as incapacitated (generally meaning: not able to provide herself with food, clothing, or make medical decisions) and appoint a guardian over her person, estate, or both (guardianship of the “person” allows the court to name someone to make decisions related to residency and most medical procedures while guardianship of the “estate” allows the court to name a person to make decisions related to the use, sale, and possession of money and assets). If Molly’s mom failed to do any estate planning and obtain the powers of attorney listed above, then Molly will likely need to resort to guardianship. Fortunately, most states (including Texas) have well-established guardianship procedures that will allow the process to be efficiently addressed (*don’t take this to mean simple or cheap, because, though guardianship can be straightforward, it requires that the applicant meets strict criteria). The bottom line here – if Mom didn’t execute powers of attorney, a guardianship will be the only thing that Molly can do (and she should).
Without question, caring for an aging or sick parent is one of the most honorable and selfless things you can do. It’s difficult on many levels. If you are the caretaker for an aging or sick person who has either lost their capacity (or is in the process of losing their capacity), you should take action now to ensure your continued ability to help them. We can help you ensure that your rights are protected, and you can continue caring for your loved one without interference from anyone else. Our firm routinely helps families like yours with estate planning (drafting the powers of attorney mentioned above) as well as guardianship. Call us today to schedule a consultation with one of our qualified attorneys. Most consultations are free of charge.
ATTORNEY CHRIS PARVIN is Board Certified in Estate Planning & Probate Law by the Texas Board of Legal Specialization. Mr. Parvin is the Managing Partner of the Dallas, Texas law firm of Parvin Law Group, P.C. and serves as an Adjunct Professor of Law at Texas A&M University School of Law. Mr. Parvin can be reached by email at firstname.lastname@example.org.
Parvin Law Group, P.C. is a Concierge Law Firm in Dallas, Texas with attorneys practicing law in the fields of Estate Planning, Probate, Business Law and Family Law.