As the U.S. population ages and available medical treatment advances, families are increasingly faced with decisions about how to properly care for aging parents and grandparents. In these difficult times, families need to understand how Texas guardianship laws work and what the available legal remedies are. The Texas Estates Code has recently been amended to require the investigation into less restrictive alternatives and avaiable supports and services that can be utilized to avoid the necessity of a guardianship. In fact, Texas law now provides that the Court cannot appoint a guardian unless it is established that alternatives to guardianship have been considered and determined not to be feasible. Today's blog post will address several of the available alternatives to guardianship that must be implemented prior to the person's incapacity.
Bank accounts
Joint bank accounts established in the name of the individual and another trusted individual will allow the alternate individual to access funds on deposit in the account to assist the incapacited individual. One note of caution, however, is that the alternate individual automatically owns all of the funds on deposit when the individual dies. If the individual prefers the remaining funds in the account upon his/her death be distributed among additional individuals, a "convenience account" should be set up instead of a survivorship account.
Appointment of Representative Payee for Social Security Benefits
Elderly individuals who receive social security retirement benefits, and disabled individuals who receive SSI benefits, can designate a representative payee to receive social security benefits for the elderly or disabled individual.
Durable Power of Attorney and Medical Power of Attorney
Prior to incapacity, an individual may execute a document known as a Statutory Durable Power of Attorney. This document confers upon another person the power to transact all matters pertaining to the person's property and money. A Medical Power of Attorney authorizes another person to consent to any medical treatment in the event the individual becomes incapacitated and cannot personally make those decisions.
Surrogate Decision Making
If Incapacitated individuals in a hospital or nursing home may have medical decisions made on their behalf by other individuals. The law prioritizes who has the power to consent, in the following order: (1) spouse; (2) adult child of the patient, as long as all other adult children have consented; (3) majority of the individual's reasonably available adult children; (4) the individual's parents; (5) an individual clearly identified by the incapacitated person before incapacity; (6) the patient's nearest living relative; or (7) a member of the clergy.
Thorough planning for incapacity is important to the smooth handling of an incapacitated person's affairs in emotionally difficult times. Thorough planning gives families peace of mind, knowing that the family member can be well taken care of during the period of incapacity. While guardianship is available in certain circumstances, the alternatives described above can avoid the time and expense of seeking and obtaining a guardianship. Christiansen Law Firm assists families in preparing for uncertain future events, relieving the burden and stress of the uncertainty. Christiansen Law Firm will review all facets of your situation and provide needed guidance and advice, and will prepare the necessary documents. For more information about how Christiansen Law Firm can help you avoid the necessity of guardianship, contact our offices in Houston or San Antonio.