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Friday, October 26, 2018

Three Common Myths About Avoiding Conservatorship

It is easy to confuse the role of a guardian and a conservator if you are not a Texas conservatorship lawyer or someone who is familiar with the Texas Estate Code. A guardian is appointed to make decisions regarding health care, living arrangements, and other non-monetary decisions for a minor or an adult who is judge incapacitated. A guardian may also be referred to as a conservator of the person.

On the other hand, a conservator or conservator of the estate is a person appointed to manage the financial affairs of a minor or an adult who is incapacitated. Incapacity may be the result of an injury, illness, or disability. The crucial factor is that the person is incapable of making financial decisions for himself or herself because of the incapacitation.

Myths About Avoiding a Conservatorship

Many people take steps to avoid the need for the appointment of a conservator. However, because of three common myths about conservatorships, you could fail to take all steps necessary to avoid a conservatorship.

Myths regarding conservatorships you need to be aware of include:

1.  A Power of Attorney Will Always Avoid a Conservatorship

Many people believe if they have a power of attorney they can avoid a conservatorship if they become incapacitated for any reason. However, this assumption is not true. Your power of attorney must contain “durability” language to ensure the power of attorney remains in full force and effect after you become incapacitated. If the power of attorney lacks the language required by law, the power of attorney may be void after incapacitation.

Therefore, you need to discuss executing a Durable General Power of Attorney with a Texas conservatorship lawyer to avoid a conservatorship.

2.  A Trust Agreement Will Avoid Conservatorship

Again, this myth about avoiding conservatorships can be very harmful. A trust agreement gives you much more flexibility and control over how your property is managed if you should become incapacitated. However, drafting a trust agreement does not guarantee a conservator will not be appointed.  Again, you must include specific wording in the trust to appoint someone to serve as the trustee if you become incapacitated.

In addition, a trust cannot hold certain types of property. If you do not have other plans in place to manage the assets that cannot be placed in a trust, a conservator will need to be appointed to manage those assets. A Texas conservatorship lawyer can help you develop a comprehensive plan that includes provisions for property that will not be held in a trust.

3.  You Cannot Challenge a Petition for Conservatorship

To be appointed as a conservator in Texas, a person must file a petition with the probate court. The petitioner must provide evidence why you are unable to manage your finances and why you need someone to take over the management of your financial matters. The court simply does not grant conservatorships on the word of the petitioner. The court requires a medical provider to explain why a conservator is needed.

You or another interested person can object to the petition for conservatorship.  While you can present medical evidence to refute the allegations, the person who files the petition for conservatorship has the burden of proof under the Texas Estate Code.

Contact a Texas Conservatorship Lawyer with Questions

If you have questions or you want to take steps to avoid a conservator from being appointed to manage your affairs, a Texas conservatorship lawyer can be of great assistance in preparing the documents necessary to avoid a conservatorship. Schedule a consult with one of our experienced conservatorship lawyers today.

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