Conservatorships have been thrust into the public spotlight in recent years because of one high-profile legal battle involving pop star Britney Spears. While many people may now understand the broad strokes of the legal mechanism because of this highly watched and followed case, it can be a complex tool best explained by a knowledgeable estate planning attorney. One thing the public understands well, though, is that conservatorships and guardianships can provide an easy route for fraud and abuse.
In Texas, a conservatorship is also called a guardianship. A court can appoint a conservator or guardian to make decisions on behalf of an individual. The person under guardianship is then deprived of making many everyday decisions on their own behalf.
To come under a conservatorship, a court must determine a person cannot make legal, financial, or medical decisions on their own behalf. This can encompass a wide range of possibilities, from mental health issues to dementia or intellectual or physical disabilities. Aging individuals can also come under conservatorship.
Typically, the court appoints a spouse or adult child to be the conservator, but in rare cases, multiple adult family members or close friends may attempt to be named as the conservator. States each have different protocols for selecting a conservator. In Texas, preference is given to family members over non-family members.
A conservatorship or guardianship can exert control over multiple areas of the incapacitated individual’s life. Some oversee personal affairs, including day-to-day decisions and tasks. Others make important financial decisions, and others can exert medical control—or a combination of all three, depending on if the conservatorship is general or limited. The court can order the conservator to oversee different areas of an individual’s life.
How to Avoid a Conservatorship
Of course, individuals are often not able to retain the ability to make safe and smart financial and medical decisions. Planning for disability or aging is crucial to avoid court-appointed conservatorships with a high potential for abuse.
A power of attorney is one way to avoid court-appointed conservatorships when planning for aging or disability. A medical or financial power of attorney can be assigned by you while you are still of capacity to a trusted person, avoiding the court’s judgment altogether. You can designate separate people to make medical and financial decisions through different documents.
You can also avoid guardianship by working with an estate planning attorney to designate a trust to administer your estate or a management trust to handle your financial decisions. You can also set up a special needs trust in the event you are physically or mentally disabled or chronically ill.
Speak with a Texas Estate Planning Attorney to Protect Your Family’s Future
Planning for your own incapacity can seem daunting. Experienced Texas estate planning attorneys are here to help. Planning in advance for the worst-case scenario can help protect you, your assets, and your family from fraud or abuse. The lawyers at McCulloch Miller, PLLC have extensive experience in estate planning, elder law, and planning for incapacity. Contact our office at 713-936-9073 to schedule an initial consultation with an attorney on our team.