Advice & Features Articles

Legal Guardianship 101

By Colin Smith | Contributor

“TO THE WORLD, YOU MAY BE ONE PERSON; BUT TO ONE PERSON, YOU MAY BE THE WORLD.” -DR.SEUSS

LEGAL GUARDIANSHIP

WHO DO YOU TRUST TO MAKE DECISIONS FOR YOU WHEN YOU CAN NO LONGER MAKE THEM?

Sometimes in Court, I watch the cases being heard before mine. Once, an elderly woman with dementia was refusing to surrender her driver’s license. Her adult children were petrified that Mom still drove, since she would drive somewhere and then forget how to get home. The children would disable her car so that it wouldn’t start, but resourceful Mom would then rent cars from Enterprise—they pick you up—and the process would repeat itself. The Court agreed that Mom should not drive and took away her driver’s license.

On another occasion, a man was obtaining guardianship over his 18-year-old mentally disabled nephew. The Judge asked Teenager who he wanted to take care of him, and the boy threw his arms around his uncle’s neck and hugged him. The ear- to-ear smile on the teenager’s face as he departed touched the heart of everyone in the courtroom.

Mom and Teenager are examples of guardianship at work. Guardianship is the legal process by which an adult’s civil rights are taken away and given to another. In other words, Mom and Teenager are children again in the eyes of the law, in the sense that they need guardians to make decisions for them. Despite their difficult predicaments, Mom and Teenager are fortunate to have family members to care for them. Too often, we take that for granted.

While the “good” cases warm a lawyer’s heart, the “bad” ones are truly gut wrenching. For example, Dad gets dementia, and one of his children convinces himself that Dad “would have wanted” him as a guardian. Invariably, these situations may involve theft, assault, undue influence, elder abuse, and kidnapping, to name a few. Ultimately, one (or more) family members try to take advantage of the person for financial gain—or just to make another family member’s life miserable. When the dust settles, Dad has little to no estate left to speak of because of the legal fees, and the family relationships are permanently fractured. Don’t assume this just happens to the wealthy; in some cases, the bad actors are after a mere $200/ month pension or a personal vendetta against a late-life spouse.

A lot of these situations can be preempted by good estate planning. Power of attorney documents, trusts, wills, and declarations of guardianship can be used to defend against bad acts or prevent them. These documents, at their core, answer one simple question: who do you trust to make these decisions for you when you can no longer make them? It’s hard to imagine giving up control of such precious and personal decisions, but it’s a far worse thought to imagine having a family fight over who should have such power. If you care for aging parents or have a special needs child, you may have some additional decisions to make. That means we need to talk to our parents about their plan (or lack thereof!)

BEFORE BROACHING THE TOPIC, ADULT CHILDREN SHOULD KNOW WHAT INFORMATION TO SEEK. IT HELPS TO KNOW WHO WILL MAKE DECISIONS FOR MOM OR DAD ONCE THEY CAN NO LONGER MAKE THEM.

Some other important things are: who can get Mom or Dad’s medical records? What does the parents’ health insurance cover? Do they have life insurance? Have they made a list of the brokerage firms and banks they do business with? Where are their important papers?

The next time you sit down with your parents, visit a financial planner, or see a tax professional, think: is my estate plan where I need it to be?

 

Editor’s Note: Reach Colin Smith at colin@colinsmithlaw.com or call 972.773.9095. www.ColinSmithLaw.com

ABOUT COLIN SMITH:

Colin Smith obtained a computer science degree from University of Texas and worked as a software consultant for ten years before returning to the classroom on nights and weekends, earning his law degree from SMU in 2010.  Colin finds that helping families plan for the future is most rewarding and focuses his legal career on estate and business planning, especially living trusts.  Colin is a member of the State Bar of Texas, Dallas Bar Association, and the Dallas Trial Lawyers Association.  In his free time, he enjoys golfing with his children, leading a Cub Scout den, attending University of Texas football and Texas Ranger games, and woodworking.

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