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Archive for August, 2011

Guardianship vs. Power of attorney in Texas

First, I have to remind you that guardianships and powers of attorney involve the courts of your particular area and your state law.  This blog provides information for people who want a little information on Texas Guardianship or a Texas Power of Attorney.

A guardianship and a power of attorney can do a lot of the same things, but they are created in very different ways and actually have many notable distinctions.   I want to start by sharing a brief snapshot of what each does.

A guardianship in Texas is a legal relationship between a “guardian” and a “ward.”  In the simplest terms, the relationship is kind of like the guardian has the same kind of legal authority a parent has over her child.  The guardian has the legal ability to make decisions on behalf of the ward, and the ward loses the legal authority to make decisions in those areas the guardian has authority.  So, for example, if a Texas Probate Court approves an application for a “guardianship of the estate,” the guardian will have the legal authority to deal with bank accounts (and many other financial decisions), and the ward will no longer have that authority.  As I’ve noted in a previous blog post, in Texas, there are two kinds of guardianship:  1) guardian of the estate and 2) guardian of the person.

So, what is a Texas power of attorney?

In Texas, there are many differentkinds of power of attorney, but two kinds are frequently used in wills and probate law offices:  1) Durable Power of Attorney, and 2) Medical Power of Attorney.

A Durable power of attorney is a legal document where one person (usually called the “principal”) gives another person (usually called an “agent” or “attorney in fact”) the legal power to make decisions in addition to himself/herself.  For example, if I appointed my wife as my attorney in fact, she could go down to my bank and make changes to my bank account.  In this example, I would also have the power to make changes to the bank account.

This power of attorney is called “durable” because it will remain in effect even if I become incapacitated.  This is a very good thing because I’ll most want a power of attorney when I’m incapacitated.  If your power of attorney doesn’t contain the correct wording, it won’t be “durable,” and the power of attorney will disappear automatically when you become incapacitated.

A medical power of attorney is simply limited to medical decisions.  So, for example, if you’re in the hospital and under the effect of anesthesia, your attorney-in-fact could make decisions about your medical treatment on your behalf.  You should give a copy of your Texas medical power of attorney to your health care provider to keep on file.

Now, that you have a very, VERY brief description of a Texas power of attorney and Texas guardianship, let me point out some of the main differences:

– broadly speaking, the guardianship is much more extensive and involved
– a power of attorney is cheaper, easier, and much faster to create
– guardianships require interaction and a hearing with a Texas Probate Court (in front of a judge)
– a power of attorney can be revoked at any time by the Principal (a guardianship cannot be revoked by the ward)
– the principal in a power of attorney does not lose his/her ability to make legal decisions, the ward in a guardianship does lose many (or all) authority to make legal decisions

There are many more differences, but you’ll need to find a guardianship attorney or probate attorney to discuss your particular situation.  If you have  a parent who’s getting older, it may be a good idea to contact a lawyer to see whether a power of attorney or guardianship is a better fit for you.  Keep in mind that free power of attorney forms or other online forms are not well suited for these issues.  These documents involve a person’s legal rights and should not be taken lightly.

As a final pointer, when you go see your estate planning lawyer to have your Texas will created, ask the attorney about power of attorney documents and also a document called a “Declaration of Guardian.”  The Declaration of Guardian is a document that tells the probate court your preferences for guardianship should you ever be declared incapacitated.  This is particularly helpful when you prefer that a specific person be named your guardian (or if you want to specifically exclude someone from becoming your guardian).  My law office in Richardson, TX provides all of these documents (Texas will, powers of attorney, declaration of guardian, and many others) in a reasonably priced package deal.  Visit www.shuttlawfirm.com for more info on my Richardson law offiice’s wills and flat rate planning packages.

 

Isaac Shutt is the Attorney/Owner at Shutt Law Firm PLLC.  Isaac Shutt is a Dallas Guardianship Lawyer and a Dallas Power of Attorney Lawyer.  Visit http://www.shuttlawfirm.com or email ishutt@shuttlawfirm.com.  You can also call Mr. Shutt at (214) 302-8197 for more information on the topic discussed in this blog or to discuss a different legal matter.  Phone-calls and quick e-mails are always free at Shutt Law Firm PLLC.  Please consider the Shutt Law Firm if you’re looking for a Richardson probate lawyer, Richardson wills lawyer, Richardson estate planning attorney, power of attorney in Richarson, or Richardson guardianship lawyer.

DISCLAIMER:  Nothing in this blog post constitutes legal advice.  The information provided herein is merely provided in the spirit of education.  If you have a legal question, you should consult an attorney for your specific legal situation.   Further, nothing in this blog shall be construed to have started an attorney-client relationship.  No such relationship exists until you sign an engagement letter with the Firm.
http://www.ShuttLawFirm.com

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What is Guardianship?

A guardianship is a legal relationship between a “guardian” and a “ward”.  Texas guardianships are governed by the Texas Probate Code, Section 13.  Follow this LINK to see the State’s guidelines for a Texas guardianship.  Basically, guardianship is for situations in which you believe a family member (or close friend) is unable to take care of himself/herself.  Once the probate court names you as someone’s guardian, you’ll have the legal authority to take care of that person.

In a guardianship, the guardian is a person who agrees to make decisions on behalf of a ward.  Technically speaking there are two kinds of guardian — a “guardian of the estate” and a “guardian of the person”.  The guardian of the estate has the power and responsibility to make decisions regarding the ward’s finances.  The guardian of the person makes decisions about the ward’s day-to-day living arrangements, health care, etc.  Often, when people go to the probate court to start the guardianship process, they’ll ask the court to make them both guardian of the person and guardian of the estate.

Typically, a potential guardian will initiate the legal process to start a guardianship when an adult family member (like a parent) has been declared “incapacitated” by a doctor and/or court.  Also, parents caring for a child with a mental disability may apply for a guardianship when the child reaches age 18 so that the parents can continue being guardians over the child after the child legally becomes an adult.

The first step to getting a guardianship in Texas is to contact a guardianship lawyer.  In fact, the Texas Probate Courts will require you to have a guardianship attorney to go through the legal guardianship process.  Secondly, a guardianship lawyer can help you explore less restrictive alternatives to guardianship.  For example, depending on your situation, a power of attorney may be a better option than guardianship.

In a future post, I will discuss how you get a guardianship in Texas and describe the Texas guardianship process.  For now, I’ll just say that getting a guardianship is a fairly involved legal process involving your law firm and probate court.  That being said, if you’re thinking about getting a will, you might want to consider also having your estate planning lawyer provide you a document called a “Declaration of Guardianship in Advance of Need.”  This document allows you to name who you would like to be your future guardian in the event that you become incapacitated.

Isaac Shutt is the Attorney/Owner at Shutt Law Firm PLLC.  Visit http://www.shuttlawfirm.com or email ishutt@shuttlawfirm.com.  You can also call Mr. Shutt at (214) 302-8197 for more information on the topic discussed in this blog or to discuss a different legal matter.  Phone-calls and quick e-mails are always free at Shutt Law Firm PLLC.  Please consider the Shutt Law Firm if you’re looking for a Richardson probate lawyer, Richardson wills lawyer, Richardson estate planning attorney, or Richardson guardianship lawyer.
DISCLAIMER:  Nothing in this blog post constitutes legal advice.  If you have a legal question, you should consult an attorney.   Further, nothing in this blog shall be construed to have started an attorney-client relationship.  No such relationship exists until you sign an engagement letter with the Firm.
http://www.ShuttLawFirm.com

Important words include Dallas guardianship lawyer, Dallas guardianship attorney, Richardson guardianship lawyer, Richardson guardianship attorney, Plano guardianship lawyer, Garland guardianship lawyer, Texas guardian, Texas guardianship, Dallas guardianship, Dallas guardianship law firm, guardianship law firm.

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