Houston Estate Planning and Elder Law Attorney Blog
Once best known for her chart-topping hits, Britney Spears is now in the limelight for a much more somber reason.
For over a decade, Ms. Spears has been under a conservatorship following a decline in her mental health. That conservatorship has recently gained attention and notoriety as Ms. Spears and those around her allege that the arrangement has been abusive. The story of her conservatorship raises an alarming question: If a conservatorship could happen to a woman as powerful as Britney Spears, could it happen to you, too?
Fortunately, there are well-established ways to avoid a court-ordered conservatorship or guardianship in the event of incapacitation. Specifically, trusts and estates lawyers can help build a legal shield in the form of a revocable living trust.
Conservatorship vs Guardianship in Texas
In Texas, a conservatorship arises when someone—a conservator—gains control over a person’s finances—the ward. Typically a conservatorship comes to play when kids are involved and at least one parent of the child is still alive. A guardianship on the other hand, is the process for an incapacitated adult, or when a child has no living parents. The process to establish a conservatorship or guardianship begins when the conservator/guardian files a petition with the probate court. The conservator must assert that the ward has a mental or physical incapacitation that makes them unable to manage their financial affairs. The ward or any interested party, such as a relative, can challenge the petition.
Once a conservatorship is established, the conservator generally has the right to control any of the ward’s financial decisions, from selling real estate to setting a weekly allowance.
Clearly, the conservatorship arrangement can be extremely restrictive, especially if it is not necessary for someone’s wellbeing. In some cases, guardianship may also be established, which gives someone authority over another’s physical care.
Several Alternatives to Conservatorships in Texas
In particular, creating a funded, revocable living trust can spare a person from a conservatorship or guardianship in the event of their incapacitation. Such a trust involves a grantor, a trustee, and at least one beneficiary. Typically, these players—the grantor, trustee, and beneficiary—are the same person in the case of a revocable trust. The grantor creates and then funds the trust, perhaps designating the trust as the beneficiary of a retirement account or insurance policy. The trustee—who, again, is also generally the grantor in this type of trust—then manages and funds the trust for his own benefit as the named beneficiary.
You may be wondering why this legal arrangement can shield someone from a conservatorship. After all, it would seem that the revocable trust still allows the would-be ward to manage finances, which conservatorship is meant to avoid. The difference is that, in the case of a revocable living trust, the grantor need not own any property in his name. Instead, the trust owns the would-be ward’s former property.
For those who may truly need help with their finances but wish to avoid the restrictive nature of conservatorships, the revocable living trust offers a potential solution. Specifically, the grantor can pick someone to manage the trust in the event of their incapacitation.
Another option for avoiding a conservatorship is appointing a power of attorney before becoming incapacitated. Trusts and estates lawyers can help people who, for whatever reason may be at risk for a conservatorship, explore revocable living trusts and power of attorney to decide if one of these arrangements is right for them.
Call a Houston Trusts and Estates Lawyer Today
If you would like to avoid a potential risk for conservatorship or guardianship, the law firm of McCulloch & Miller, PLLC may be able to assist you. Our Houston trust and estate attorneys have decades of experience setting up revocable living trusts and power of attorney to help people avoid the unnecessary outcome of a guardianship or conservatorship. We can assure you that setting up a legal instrument like a trust or power of attorney to protect your financial independence is significantly easier than challenging a petition for conservatorship in court. Set up a consultation with us today by calling 713-333-8900.