Many discussions around estate planning involve the topics of wills and powers of attorney. However, a Designation of Guardian in Advance of Need is also an essential part of a comprehensive estate plan — especially for unmarried couples.
A Designation of Guardian can be used in two ways: to designate a guardian for yourself should you become incapacitated or to designate a guardian for your child. While both are important, here I will only discuss the former type of designation.
There are two types of guardianships in Texas: guardianship of the estate and guardianship of the person. A guardian of the estate is responsible for managing the property and financial affairs of the incapacitated person (the ward). A guardian of the person is generally responsible for providing care, supervision, food, clothing, and shelter for the incapacitated person, and may also consent to medical treatment on her behalf. An individual may be appointed either guardian of the person or guardian of the estate, or both, depending on the needs of the incapacitated person.
A Designation of Guardian is very important even if you already have Medical and Financial Powers of Attorney. A recent case illustrates why:
Joe and John are a same-sex couple who have been together for over twenty years. They have powers of attorney designating each other as the primary agent. Thus, in the event that Joe becomes incapacitated, John can manage his finances or make medical decisions on his behalf. Joe has been diagnosed with Alzheimer’s and it has become increasingly difficult for him to manage his own day-to-day care. Per the medical power of attorney, John has stepped in to manage Joe’s care on his behalf. However, Joe’s brother has never liked John and believes he could provide better care for Joe. So Joe’s brother commences a legal proceeding asking the court to appoint him guardian over Joe. Because powers of attorney are no longer effective after appointment of a guardian, should Joe’s brother succeed in the appointment, he could have total decision-making ability over Joe’s person (where Joe lives, medical care of Joe, etc.) and Joe’s estate (financial affairs and property).
In a recent similar case, the appointed family member to act as guardian prohibited the ward’s partner from seeing or having contact with the ward. Generally, a ward’s spouse has priority in appointment as the ward’s guardian. However, because same-sex relationships are not recognized in Texas, siblings and other family members have priority in appointment as guardian over a partner.
In the above case, had Joe drafted a Designation of Guardian in Advance of Need, he could have averted this situation by designating John as his guardian and/or specifically excluding his brother from serving. While a court is not required to comply with the advanced designation, it will usually do so unless it is not in the best interest of the ward.