Tuesday, April 24, 2018

How Can I Avoid Conservatorship in Texas?

Conservatorship is the legal process in which the court grants a person the authority to manage another person’s finances. The court assumes that minors always need to have a guardian to make important decisions about their care and finances.  However, an adult may need a conservator or guardian because of a disability or illness that results in mental or physical incapacitation. A conservator is under court supervision and must comply with stringent rules and laws governing conservatorships. Therefore, you may need the assistance of a Texas avoiding conservatorship lawyer if you are applying to be a conservator or you are a conservator.

Conservatorship in Texas

Guardians appointed by the court have authority over a person’s physical care. They make decisions concerning the person’s medical care, education, physical residence, extracurricular activities, and daily activities. A conservator, also known in Texas as a guardian of the estate, has the authority over a person’s finances. The minor or protected person is known as the ward.

To be appointed as a conservator, you must file a petition with the probate court. The ward or other interested person can challenge the petition. In addition to your testimony regarding why the person needs to be protected, the court requires a medical provider to explain why the person is unable to manage his or her finances and requires someone to take over this responsibility for that person.

Once a conservator is appointed, a bond must be filed to ensure the conservator executes his fiduciary duties in the best interest of the ward. The conservator has the authority to make all financial decisions for the ward, including managing the person’s money, personal property, and real estate holdings. Some of the powers a guardian of the estate may execute on behalf of the ward include:

  • Open and close financial accounts

  • Pay bills and daily living expenses

  • File tax returns

  • Purchase and sell property

  • Invest money and manage investment accounts

  • Apply for life insurance and other insurance

  • Protect and manage assets

  • Manage retirement accounts, Social Security benefits, and other sources of income

A conservator must file an annual accounting with the probate court. The accounting is intended to protect the ward by giving the court oversight over the conservator’s activities. In addition, the conservator usually must obtain court approval prior to purchasing or selling a major asset.

Alternatives to Conservatorships in Texas

The conservatorship process can be expensive and lengthy. In addition, the court retains oversight of the conservator and requires strict adherence to all reporting requirements. Therefore, it is usually prudent to try to avoid a conservatorship or guardianship of the estate when possible.

If you want to retain control over who is appointed to make decisions for you if you become incapacitated for any reason, there are steps you can take to avoid the necessity of a conservatorship.

Two of the most common tools that allow you to control how your finances are managed are powers of attorney and trust agreements. With a Durable General Power of Attorney, you can appoint someone to have control over your finances and property. Provided a power of attorney has the correct legal language, it will remain in effect even after a person is incapacitated.

Trust agreements are very flexible and offer a greater amount of control over what the person can and cannot do with regard to your property. Through a trust, you can dictate how the trustee will use and manage the assets within the trust for your benefit. You can also dictate how the property will be distributed upon your death.

Consult a Texas Conservatorship Attorney for More Information

If you believe that you need to be appointed to care for another person, you should contact our Texas conservatorship attorney to discuss the matter. Our attorneys can help you file a petition for appointment of a conservator and help you fulfill your duties as a conservator. In addition, we represent clients who need to contest a petition for conservatorship or file an action alleging a breach of fiduciary duty by a conservator. Contact one of our Texas conservatorship attorneys at the Law Office of Carey Thompson today.

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