By Colin Smith | Contributor
“TO THE WORLD, YOU MAY BE ONE PERSON; BUT TO ONE PERSON, YOU MAY BE THE WORLD.” -DR. SEUSS
LEGAL GUARDIANSHIP
WHO DO YOU TRUST TO MAKE DECISIONS FOR YOU WHEN YOU CAN NO LONGER MAKE THEM?
At times in court, I observe the cases being processed before mine. Once, I witnessed an elderly woman with dementia who resisted giving up her driver’s license. Her adult children were terrified that their mother was still driving; she would frequently go somewhere and then forget how to get home. In response, the children disabled her car to prevent it from starting, but clever Mom would then rent vehicles from Enterprise—who offer pick-up service—and the cycle continued. The court ultimately ruled that she should not drive and revoked her license.
In another instance, a man sought guardianship over his 18-year-old nephew who had a mental disability. The Judge inquired who the teenager wished to care for him, and the boy affectionately threw his arms around his uncle in a joyful embrace. The beaming smile on the teenager’s face as he left left a profound impact on everyone present in the courtroom.
These two scenarios illustrate how guardianship functions. It is the legal procedure by which an adult’s civil rights are transferred to another person. Essentially, in the eyes of the law, this elderly woman and teenager revert to a state where they require guardians to make decisions on their behalf. Although their situations are challenging, both are fortunate to have family members who care for them. We often underestimate this blessing.
While positive cases warm the hearts of lawyers, the negative ones are truly heartbreaking. For instance, when a father develops dementia, one of his children may convince themselves that Dad “would have wanted” them as his guardian. Such situations can lead to theft, assault, undue influence, elder abuse, and even kidnapping, among other issues. Ultimately, one or more family members may exploit the individual for financial gain, or simply to cause distress to another family member. When everything is concluded, the father may be left with almost no estate due to legal fees, and the family relationships may be permanently damaged. This phenomenon does not only occur among the wealthy; in some instances, the perpetrators may be after a mere $200 monthly pension or harbor a personal grudge against a late-life spouse.
Many of these situations could be avoided with proper estate planning. Documents such as powers of attorney, trusts, wills, and guardianship declarations can offer protection against negative actions or help to prevent them. Fundamentally, these documents address a simple and crucial question: who do you trust to make decisions on your behalf when you can no longer do so? It’s difficult to consider relinquishing control over such vital and personal decisions, but the thought of family disputes over who should hold that authority is far more distressing. If you are caring for aging parents or have a child with special needs, you may have additional choices to contemplate. This underscores the importance of discussing these matters with our parents regarding their plans (or lack thereof).
BEFORE BROACHING THE TOPIC, ADULT CHILDREN SHOULD KNOW WHAT INFORMATION TO SEEK. IT HELPS TO KNOW WHO WILL MAKE DECISIONS FOR MOM OR DAD ONCE THEY CAN NO LONGER MAKE THEM.
Other important considerations include: Who can access Mom or Dad’s medical records? What does their health insurance cover? Do they carry life insurance? Have they compiled a list of the financial institutions they engage with? Where are their important documents located?
The next time you sit down with your parents, consult a financial planner, or meet with a tax professional, reflect on whether your estate plan is aligned with your needs.
Editor’s Note: Reach Colin Smith at colin@colinsmithlaw.com or call 972.773.9095. www.ColinSmithLaw.com
ABOUT COLIN SMITH:
Colin Smith obtained a computer science degree from the University of Texas and worked as a software consultant for ten years before returning to education on evenings and weekends, earning his law degree from SMU in 2010. Colin finds it immensely rewarding to assist families in planning for the future, concentrating his legal practice on estate and business planning, particularly living trusts. He is a member of the State Bar of Texas, the Dallas Bar Association, and the Dallas Trial Lawyers Association. In his spare time, he enjoys golfing with his children, leading a Cub Scout den, attending University of Texas football and Texas Rangers games, and pursuing woodworking.
