Guardianship

Does My Older Loved One in Texas Need a Guardian?

Published on: May 17, 2022 | By Thomas W. McCulloch

Parents take care of their children as they grow up and age. However, when these parents are getting older, children may get concerned about their parent’s health and well-being. In these cases, they may seek a guardian for their loved one, to take care of their personal and financial affairs. They, of course, want to take their parent’s wishes into account, but also may not want to leave them on their own anymore—especially if they are physically incapacitated or are in mental decline. Below is information about when Texans should seek guardianship for their aging parents, along with essential aspects of a guardianship.

What is a Guardianship?

Guardianship is obtaining the legal authority to make choices for another individual. A guardian is someone responsible for another person’s personal and financial affairs when they are no longer mentally capable of making these decisions for themselves. By law, individuals are assumed mentally capable of making their own decisions; because of this, people must go through a court process to declare someone incapacitated and appoint a guardian for them. A guardianship may be needed if the person cannot take care of themselves due to mental illness, disease, or mental incapacity.

Because guardianships can mean individuals do not have the ability to make decisions for themselves—including the ability to marry, vote, or even make certain medical decisions—courts will sometimes limit a guardian’s authority to the area they may need help with, like financial affairs.

How Can Disability Pre-Planning Help Houston Residents?

Published on: September 2, 2021 | By McCulloch & Miller, PLLC

We want to believe that, should we ever become incapacitated, the people we trust to protect us will behave honorably. A recent California court decision shows that, unfortunately, this is not always the case.

Houston residents young and old should heed the court’s warning in this case, which it described as a “textbook” example of a fiduciary relationship gone wrong. The case concerned an elderly woman and her son. The son was his mother’s durable power of attorney. In this role, he had broad rights to manage his mother’s property once she became incapacitated in her advanced age. The mother had a separate conservator of her person and estate.

In Texas, the role of a conservator (or guardian) of a person’s estate is comprehensive. Such a conservator has authority over their ward’s physical care, including the ability to make decisions about their education, residence, medical treatment, and even their daily activities. They also control their ward’s financial decisions, including both long-term and day-to-day management of money, personal property, and real estate. Clearly, conservatorships and guardianships can be ripe for fraud and abuse.

How Recent Concerns Surrounding Conservatorships Can Play into a Texas Estate Plan

Published on: July 29, 2021 | By McCulloch & Miller, PLLC

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.

What Should I Know about Guardianship?

Published on: April 18, 2020 | By McCulloch & Miller, PLLC

In a perfect world, a child would be raised by its parents. However, this isn’t always possible, and legally enforceable decisions must sometimes be made to name the person who is best positioned to look after a child.

Guardianship is generally only needed when a person is incapable—whether legally or practically—of looking after their own affairs, says VENTS Magazine in the article “Legal Guardianship 101: What You Need to Know.”

Courts have the power to appoint guardians for adults and children. This is usually a person who is unable to make decisions for themselves.

Under 40, Do I Need a Will?

Published on: February 27, 2020 | By McCulloch & Miller, PLLC

It's never too early to start estate planning. If you already have a family, getting your personal affairs in order is a must. The sooner you start planning, the more prepared you will be for life's unexpected twists and turns.

Estate planning is a crucial process for everyone, no matter what assets you have now. If you want your family to be able to deal with your affairs, debts included, drafting an estate plan is critical, says Wealth Advisor’s recent article entitled “Estate planning for those 40 and under.”

If you have young children, or other dependents, planning is vitally important. The less you have, the more important your plan is, so it can provide as long as possible and in the best way for those most important to you. You can’t afford to make a mistake.

Planning for Incapacity

Published on: December 16, 2019 | By McCulloch & Miller, PLLC

It’s a hard thing to imagine: what would your life be like, if you were not able to take care of yourself? Not being able to manage your physical or financial needs, drive, leave your home without assistance, or do any of the things that you do now as a legally competent, abled-bodied person?

Being incapacitated means that someone has to be named to carry out your health care and manage your finances. Without a plan, courts usually get involved, and often people who don’t know the person needing help are the ones who make decisions for them. With a plan, as described in The Post-Searchlight’s recent article, “How to go about planning for incapacity,” you have the ability to tell what your wishes would be for health care and name someone to be in charge of your financial and legal affairs.

Incapacity can strike at any time. Advancing age can bring dementia and Alzheimer’s disease, and a serious illness or accident can happen suddenly. Therefore, it’s a real possibility that you or your spouse could become unable to handle your own medical or financial affairs.

Why You and Everyone Else Needs a Will

Published on: December 11, 2019 | By McCulloch & Miller, PLLC

Once you understand what a will can do, the reason that everyone needs one becomes a lot clearer, especially if you have any minor children or any assets.

A will is a legal document used to provide clear and binding instructions on how you want your assets to be distributed after you die. Everyone should have a will, because they can also be used to identify a person who you want to handle your property, known as the executor and who should be the guardian of your minor children, if both parents die.

Yahoo Finance’s article, “What Does a Last Will and Testament Actually Do?” explains that a last will and testament has instructions for what you want to happen with your assets. A will also designates an executor, names beneficiaries and more. You should work with a qualified estate planning lawyer, when preparing one.

Here are the Estate Planning Documents You Must Have

Published on: November 6, 2019 | By McCulloch & Miller, PLLC

Leaving the workplace behind and heading into retirement can be as much an emotional transition, as it is financial. The prospect of fulfilling dreams long deferred, while recognizing a milestone of aging can take time to work through. At the same time, there are time-sensitive tasks that need doing.

During this process, which is easier for some than others, it’s very important to tend to financial and legal matters in estate planning, reports Forbes in a recent article, “Retirement, Estate Planning: Documents You Should Have.”

Putting together a well thought out financial plan and creating an estate plan lets you be certain that personal, financial, and health wishes will be carried out the way you want. Managing your estate, regardless of the size, starts with working with an experienced estate planning attorney who will help give you greater control, privacy and security of your legacy. Here are the documents you need to get started:

How Does a Power of Attorney Work?

Published on: November 4, 2019 | By McCulloch & Miller, PLLC

The durable power of attorney is a means of naming a person who can represent another in all legal and financial matters, while they are alive and well, as well as when they are incapacitated. It is a legal document that needs careful consideration.

The power of attorney gives a representative or an agent the legal right to conduct financial affairs for another individual. A healthcare power of attorney gives an agent the ability to make medical decisions for another person. Both can be crafted by an estate planning attorney to give complete and wide-ranging decision making powers, or to be more targeted.

The Aitken (SC) Standard’s recent article, “The durable power of attorney,” explains that there are three different types of powers of attorney: nondurable, springing and durable.

Did Groucho Marx Have Estate Planning and Elder Care Problems?

Published on: September 13, 2019 | By McCulloch & Miller, PLLC

“By the time Groucho was an old man, however, he experienced significant problems in his daily activities, medical decision-making and the management of his estate. He suffered from elements of dementia, a heart attack and congestive heart failure, falls resulting in a broken hip, and after that hip was repaired, another fall and broken hip, urinary tract infections, strokes and hypertension.”

Julius Henry Marx, better known as Groucho, died 42 years ago on Aug. 19, 1977, at age 86. Groucho teamed with three of his four brothers—Harpo, Chico, and Zeppo—to become stars of vaudeville, Broadway, film, radio and television. (A fifth brother, Gummo, wasn’t part of the act).

PBS News Hours’ recent article, “How Groucho Marx fell prey to elder abuse” reports that the legal battles over Groucho’s money and possessions went on long after he died. The unrest of his last few years is familiar to adult children concerned with the well-being of their elderly parents.