Has your aging loved one named a guardian in their estate plan?
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Has your aging loved one named a guardian in their estate plan?

On Behalf of | Dec 26, 2019 | Estate Planning |

People planning for their golden years want to age gracefully and spend as much time as possible as healthy, thriving adults after retirement. That leads them to plan for a best-case scenario that involves independent living and travel.

Unfortunately, for some people, the later years will bring with them degenerative medical conditions such as Alzheimer’s disease, muscular dystrophy and many other medical conditions that impact cognitive function and the physical ability to care for oneself.

Some adults will reach a point where they can no longer adequately provide care for themselves or make decisions on their own behalf. In that situation, it often falls to family members to ask the courts in Texas to intervene and name a guardian to make those important legal, medical and financial decisions. However, you could encourage your loved one to plan for this eventuality by naming a guardian in their estate plan.

Texas allows older adults to choose their own guardians

There are multiple ways for the state of Texas to name a guardian on behalf of an older adult, but allowing someone to choose their own guardian before cognitive decline affects their ability to legally execute binding documents may be the best option. An older adult is less likely to balk at giving up control over their financial and medical decisions if they implicitly trust the individual assuming those responsibilities.

However, in order for such a request to hold up in court, an aging adult must add their request for a specific guardian to their last will or estate plan before anyone can claim they suffer from diminished capacity. In other words, waiting until someone receives a diagnosis of a serious, degenerative condition may mean waiting too long.

If the courts likely wouldn’t uphold other contracts or decisions made by an older adult with diminished mental capacity, they likely won’t defer to their guardianship preferences at that point either.

Naming someone ahead of time gives the family a chance to plan

Family members often find themselves scrambling when the cognitive decline of an aging loved one becomes obvious. Siblings may argue over who should assume the responsibility. In some cases, siblings will not agree about whether it is time to seek guardianship, resulting in a bitter divide within the family.

Naming a guardian earlier in life ensures that family members know what to expect as a testator’s health declines. Planning early in life will make your aging loved one and the rest of the family feel more prepared for whatever life brings. Choosing the right person or people now will make transitions easier when the time comes.

It is possible for your loved one to split the authority or responsibilities involved in guardianship among multiple people they trust. Your family’s medical history, as well as the dynamics of the interpersonal relationships between siblings and parents, will influence guardianship structure. It may be possible to name one person as guardian while moving most other assets into a trust administered by a separate trustee for additional oversight in families with substantial assets.

Including more members of the family in the planning and execution of a guardianship will ensure greater comfort with the idea and better protections for the older adults who need the safety of a guardianship.


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