DON’T USE A SLEDGE HAMMER TO SWAT A FLY
By: James M. Bright, Attorney at Law
The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Many instances arise which require that one person make decisions for another, either on a temporary or permanent basis. These decisions may run a large gambit of subject areas, but may be reduced to mean those subject areas where the person in need, which for purposes of this article will be called the “ward,” is temporarily or permanently incapacitated and, therefore, unable to make decisions for themselves.
“Incapacitated person” is defined in the Texas Probate Code §601(14)(A)(B) or (C), as “(A) a minor; (B) an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; or (C) a person who must have a guardian appointed to receive funds due the person from any governmental source.”
When attempting to determine if a guardianship is really needed, it is necessary to first determine exactly what must be accomplished and for what type of ward.
In many cases, there may be available a more simplified approach that will accomplish the desired goal(s). If such approach can be found, you may be able to avoid the time consuming (and sometimes expensive) formal guardianship with its incident court reporting and accounting.
The following is not intended to be an all-inclusive list of methods which may be utilized to avoid guardianship, but they are a few of the common types which you may wish to consider, depending upon your exact circumstances.
Durable Power of Attorney – This is a simple document which is found in Article 490 of the Texas Probate Code. This document will give the person that you designate the power to deal with your property just as you could do and will continue in force even if you later become unable to make business decisions for yourself.
Medical Power of Attorney – This document allows you to designate whom you would like to make your healthcare decisions, if and only if, you are unable to do so. Consider the possibility of a person whose spouse has predeceased and who has two living children. Do you wish for the doctor who is caring for you to follow the instructions of child one or child two? If this document has been prepared by you before the need arises, you will have decided who should make those decisions, and no necessity will exist for appointing a guardian to make those decisions.
Advanced Directive to Physicians – Sometimes called a “living will” will take the decision away from others and allow you to make it for yourself in advance as relates to use of extraordinary measures to sustain life.
Sale of Property of an adult or minor ward without a guardianship of the estate can be accomplished if the asset being sold is valued at less than $100,000.00, and the proceeds are paid into the registry of the court. Although this is an available remedy, the person making the request will wish to carefully weigh the advantages and disadvantages of guardianship.
Section 142 Trusts allow for management of property recovered in a lawsuit where a minor or incapacitated person is the beneficiary of the judgment. The court may, on application and hearing, provide a decree for the investment of funds accruing to the minor or incapacitated person without a separate guardianship proceeding.
School Admission Procedures of a minor are available absent a guardianship proceeding. The Texas Education Code allows each school district to establish rules for who can attend a public school. You would be well advised to explore requirements with the particular school district concerned even before you speak with an attorney of your choice.
Receivership is a remedy available to the estate of a minor if the minor’s estate is in danger of injury, loss or waste and does not require a guardianship.
Representative Payees – may be appointed by the Social Security Administration to handle social security benefits to a minor or other incapacitated person without a guardianship.
Commitment Actions for Veterans are available through the Department of Veterans’ Affairs to commit mentally incompetent veterans.
Veterans’ Benefits Fiduciaries may be appointed to handle administration of veterans’ benefits without resorting to guardianship.
Suits by Next Friend – The Texas Rules of Civil Procedure article 44 provides a method for a minor or incapacitated person (as defined by the rule) to bring a lawsuit as “next friend” of the minor or incapacitated without need of a guardianship.
Obviously, the above-listed instances are not the only alternatives to guardianship, but they are intended to be demonstrative of the fact that there are numerous ways to approach each case.
Should you have cause to consider the possibility of guardianship for a loved one, please be advised that it is only after an examination of the particular facts and discussions with an attorney of your choice that he/she can offer alternatives to assist you in making that decision. There are times when using a “fly swatter” to kill a fly can be more effective than a sledge hammer.
James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street
in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com