Tony Sr. has been at odds with his son, Tony, Jr, for years over a ranch Senior inherited from his father twenty years ago. The conflict arose shortly after the father/grandfather died. Junior tried to convince his father to sell the property and share the proceeds with him and his sister, Meadow. Senior refused and has held out ever since, in part due to Junior’s financial irresponsibility. Tony, Sr. is now in his seventies with no mental or serious physical impairments. However, in angry exchanges, Tony, Jr. has threatened to have his father declared incompetent and institutionalized. Meadow, who sides with her father, revealed to Senior that Junior intends to have himself named Tony, Sr.’s guardian in an effort to gain control over the property. What can Tony, Sr. do, if anything, to protect himself?
Fortunately, there are protections available to those facing situations like Senior’s. As his first line of attack, Senior should execute a Medical Power of Attorney naming someone he trusts – and certainly not Tony, Jr. – to make decisions regarding medical treatment should Senior become unable to make those decisions for himself. Naming someone other than Junior is important because, absent the POA, state law would allow Junior to be among those who could make decisions for Senior if he couldn’t make them for himself.
Tony, Sr. should discuss with Meadow, or whomever he names as his attorney-in-fact in his Medical POA, the medical decisions he would make for himself. It is crucial that he do this with some detail because the agent under the POA has the obligation and fiduciary duty to follow those wishes.
Tony, Sr. should couple this POA with a Medical Directive which establishes his wishes regarding continuation or discontinuation of medical treatment under specified circumstances, such as, terminal illness, coma, and any other particular scenario he chooses to spell out.
Texas allows a competent person to name the preferred guardian of their person and/or estate as well as the person or persons they do not want to be appointed should the need arise. Tony, Sr, should have his attorney prepare, and he should sign, a declaration as provided in Texas Estates Code §1104.202(a) and (b) naming the person he would choose as his guardian, if needed. He should also list in the document Tony, Jr., and any other person he would not trust to be his guardian, as disqualified to serve.
Should Tony become incompetent, the judge appointing a guardian for him is required to appoint the person Tony named in his declaration unless that person is found to be disqualified or would not serve Tony’s best interests. The statute states: “The court may not under any circumstances appoint as guardian a person named [as disqualified] under this subsection.” Therefore, the court could never appoint Tony, Jr. or any other person he had named as disqualified.
It is clear that persons threatened by family or friends as Tony, Sr. has been have remedies that will protect them against an exploitative guardianship. The key for Tony, Sr., and those similarly situated, is to take action while they are competent.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.