Declaration of Guardian―Why Bother?
By Tiffany S. Wright, Davidge & Wright Attorneys At Law
At every will signing ceremony, I launch into a little speech about the “Declaration of Guardian” document included in the package. Basically I refer to that document as a “safety net” that hopefully will never do more than take up a couple of pages of space in the clients’ estate plan binders. The declaration is short and to the point―it merely names the guardians a client would want to be in charge of his or her “person” or well being, and “estate” (meaning assets while the client is living). It generally lists an original for each type of guardian and then one or more alternates. Clients need not list the same people in the same order for both types of guardian, but often do―generally naming a spouse first, followed by one or more adult children. In cases where the client wholeheartedly trusts a child’s spouse, the law allows co-guardians if the two are married; however, clients cannot under Texas law list two of his or children as co-guardians.
Again, the “Declaration of Guardian” document most likely will remain unused, as the client’s General Power of Attorney and Medical Power of Attorney allow the appointed powers of attorney to act on the client’s behalf whenever he or she is unable due to incapacity―whether temporarily or permanently. Most individual third parties and financial and medical institutions are familiar with and accept these powers of attorney, so most people acting under a loved-one’s appointment never run into any trouble in taking care of that loved-one in times when he or she cannot act. But sometimes issues arise that basic powers of attorney cannot adequate address or rectify.
For example, an individual may live alone and come to rely on nearby friends or neighbors to assist in everyday living when family members―including the appointed powers of attorney―live too far away to routinely check on the individual. Unfortunately, sometimes those nearby “helpers” prey on lonely, elderly people who may often begin showing signs of dementia. A power of attorney held by a trusted family member will not keep a person whose judgment is clouded by loneliness, medical conditions or medications from latching on to a “friendly” neighbor and entrusting that neighbor with access to safes, passwords and even bank accounts and credit cards. It is in those situations where loved ones almost have to file an application to have a guardian appointed, or risk having their family member being taken advantage of by unscrupulous “friends.”
Obtaining a guardianship on a loved one is something we all want to avoid due to not only the time, expense and ongoing monitoring and reporting requirements, but also because it is difficult to publicly testify that a loved one is incapable of handling his or her own affairs―especially where that loved one has moments of lucidity and clear thinking. With a “Declaration of Guardian” document, however, at least the applicant for guardian can be comforted in knowing that the potential ward selected him or her to be the applicant before the need arose. Additionally, if the potential ward knew when signing the document who he or she did not wish to ever serve as guardian, and specifically excluded those individuals in the document, the court will honor those conditions as well when making the appointments.
Dealing with the affairs, both financial and medical, of an elderly loved one―especially one who is living alone at home―can create friction in even the most well-balanced and loving families. When emotional or physical distance comes into play, the rights and well-being of the senior adult often become overlooked or misjudged as a result of short, sparse visits and an inability of family members to see the big picture. Children do not want to “ruin” the visit by asking their father about questionable bank withdrawals or what happened to the antique car he lovingly restored or why he suddenly has a significantly younger “lady friend.” A father having a validly executed “Declaration of Guardian” will not make these situations anxiety-free, but at least the children will know their father’s wishes and that he planned in advance for the possibility arising that his children would need to act under that document.
If your estate planning documents do not include a “Declaration of Guardian,” consider asking your attorney to draft one. And if you have elderly parents, discuss their wishes with respect to possible guardianship designations before the need arises.
Tiffany Wright is with Davidge & Wright Attorneys At Law and may be reached at 940-382-9500.