In Texas, a conservator (also called a guardian of the estate), handles another person’s financial matters, like paying the bills and managing the investments and other assets of the person. If an illness or injury leaves you unable to make decisions for yourself or communicate those choices, you are incapacitated. In that situation, your family will have to go to the probate court and get a judge to declare you incompetent and appoint a conservator to take care of your financial issues. A Texas avoiding conservatorships lawyer can help you prepare documents now so that your family will not have to get a conservatorship over you.
The Consequences of Having to Get Conservatorships
It can take weeks or months to go through the court. In the meantime, your bills are going unpaid, your checks are not getting deposited, your checks might not clear the bank, and other financial problems could arise.
Also, going to court means that your family will have to pay court costs, attorney fees, the expense of obtaining medical records, the cost of expert medical witnesses, and an attorney that the court appoints to represent you. If more than one person insists on being your conservator, the court battle could cause long-term damage to relationships within the family.
Ways to Avoid Conservatorships in Texas
You have two primary options for avoiding a conservatorship in Texas, a Durable Power of Attorney or a trust agreement that nominates someone to serve as the trustee if you cannot make decisions for yourself or communicate your choices.
Durable Power of Attorney for Financial Matters
An ordinary power of attorney expires when you die or become incapacitated. To protect you in the event of an incapacitating illness or injury, your document must be “durable,” which means that it stays in effect if you lose legal capacity.
You would name someone who would take care of your financial matters, run your business, or whatever the document specifies if and only if you cannot. As soon as you recuperate and become competent again, you can take the reins back. No one can use your power of attorney against your will if you are legally competent.
What if you had heart surgery and had to stay in the ICU for a week, heavily sedated and unconscious? If you have a durable power of attorney that names someone to act on your behalf if you cannot, that person can step in and make sure that your financial matters do not get neglected. When you regain consciousness and legal capacity, you can thank the person and retake control of your finances.
Trust Agreement with Specific Language
A living trust can include language that nominates someone to be the successor trustee if you become incompetent due to an injury or illness. Not all trusts contain this provision, so you should talk with your attorney if you want this protection from your trust agreement. The successor trustee will only have the powers listed in the document.
Whichever option you select, working with Texas estate-planning attorney can help protect you and your loved ones so that a conservatorship will not be necessary. Schedule a consultation with one of our experienced estate-planning lawyers today.