Last month's final column dealt with the issue of diminished capacity. It distinguished incapacity from legal incompetence, which is a legal proceeding in which a court appoints a guardian to handle an incompetent personís person or property matters.
Since guardianship is a harsh remedy which takes away a personís rights, it should be a step of last resort. Even judges are required to use the least restrictive measures necessary and avoid guardianship if possible.
Expense is another reason to seek alternatives to guardianship. The guardianship law is designed to protect the rights of the ward, the person for whom a guardian is appointed. An established guardianship necessitates a great deal of attorney involvement. The costs of administrating the guardianship can often exceed the annual income of the estate.
Alternatives to guardianship
A number of options avoid guardianship. Think about alternatives to guardianship before incapacity occurs. This column will deal with the alternatives for adults to avoid guardianships.
Powers of attorney and medical directives
Angelica is a hip 40-year-old who had always prided herself on staying ahead of problems. However, she had never thought about designating someone to take care of her affairs if she were unable to do so.
Then she had an auto accident that left her in a coma for 24 hours. That served as a warning.
Angelica recovered fully in a few days, but her experience made her aware of her vulnerability.
Her lawyer friend, Jenny, recommended she execute a statutory durable power of attorney and a medical directive immediately. This, she explained, would allow Angelica to avoid the necessity of a guardianship if she became incapacitated.
Through the durable power of attorney, Angelica designated a person to act as her agent with broad authority to deal with her property, including the authority to handle her checking accounts, pay her bills and perform any other act of business necessary.
She also executed a medical power of attorney, which designated someone to make medical decisions for her. She signed medical directives that would let medical professionals know the treatment she wished to have and that she did not wish to have.
Doris, a retired librarian, was fiercely independent and capable of taking care of her own physical needs. She could still dress herself, prepare her own meals and even drive her car safely. However, Doris was struggling with managing her checking account. She forgot to note expenditures and had received more than one OVERDRAWN notice from her bank.
Doris came to her son and admitted the problem. He volunteered to keep her checkbook balanced. Problem solved.
James, a skilled carpenter who still worked odd jobs, had developed a similar difficulty with managing his finances. James, however, had no children and no relatives who lived close by. He didnít even have any friends or neighbors he felt comfortable about asking for help.
James learned about special money management programs in which volunteers assist individuals at risk of losing financial independence. In addition to helping James manage his checking account, the volunteers helped protect him from financial abuse, neglect and exploitation.
James contacted the agency in his area and was assigned a volunteer bill payer who helped him set up a budget, pay his bills and balance his checkbook each month. The program James chose had built-in safeguards such as insurance coverage for his funds. The agency required a background check on all volunteers and staff and monitoring of bank accounts.
Rachel was a widow who lived alone with a monthly Social Security check as her main source of income. Joseph, her son, lived approximately 100 miles away and only visited occasionally.
On one of those visits, Joseph discovered his motherís electricity had been cut off. He also found a stack of unopened mail that dated back several months. Joseph quickly realized that somebody had to take over the management of his motherís finances.
Fortunately for Joseph, the Social Security Administration allows a recipient of governmental benefits to designate a representative payee who is given signatory authority to receive the governmental benefits and manage them.
Rachel was so frightened by the loss of electricity that she agreed to let Joseph take charge. Joseph obtained the paperwork needed for his mother to sign. The Veterans Administration, Railroad Retirement and the Office of Personnel Management also provide for the designation of a representative payee.
Management of community property
Mitchell and Mary are a married couple in their mid-80s. Mitchell suffered a stroke recently and a probate judge has declared him legally incompetent. Mary is in possession of all her mental faculties and is in good physical health.
The judge opted not to set up a guardianship because the coupleís only property is community property. The law in Texas provides that a competent spouse retains authority to manage, control and dispose of all community property if the court does not find the spouse is disqualified.
Mary is not disqualified because she: (1) is not a minor; (2) is not a person known as notoriously bad; (3) is not incapacitated; (4) is not a party or parent to a party who has a lawsuit concerning Mitchellís welfare; (5) does not owe Mitchell any unpaid debts; (6) has no adverse claims against Mitchell or his property; and, (7) does not lack the education or experience to handle the community property estate.
Therefore, Mary was allowed the right to manage, control and dispose of all their property.
If you have questions, please do not hesitate to call me at 254-797-0211 or e-mail me at firstname.lastname@example.org.
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.