San Antonio Express-News
November 22, 2005

Controlling who Makes Your Decisions

copyright 2005, Paul Premack

The first thing you should realize is that your father is the person in charge of his own legal issues. You may be the person that he relies on, but you cannot make official decisions for him until you are legally authorized. As such, the first thing that needs to happen is that your father needs to visit his own attorney.

Two ways exist for someone else (you or your sister) to legally make decisions for your father. The first is Guardianship, which is designed to 1) remove legal authority from your father if he is proven to be incapacitated, and 2) to assign that authority to a Guardian for management of his financial estate and control over his medical care.

Guardianship is an involuntary court proceeding, so there are a number of procedural safeguards designed to protect your father’s legal rights. One safeguard requires action from him: a Declaration of Guardian. This is a document that he can sign while he is still healthy, declaring that if someone should ever try to impose a Guardianship on him in the future, he selects a certain person as his Guardian and rejects other people as his Guardian.

If he has signed a Declaration (his attorney must prepare it, and it requires two independent witnesses and a self-proving affidavit) then anyone he rejects as Guardian is legally disqualified. If he rejects your sister and later she attempts to become Guardian, the court must reject her as well. That strategy keeps her from gaining control.

The second way that someone can legally make decisions for your father is for him to voluntarily grant authority. He should, at the same time that he makes a Declaration of Guardian, sign two other legal documents: a Durable Power of Attorney for financial management and a Medical Power of Attorney. He can designate you as his Agent, giving you legal authority to handle his finances and to make his medical decisions if he becomes incapacitated. He should also select alternative agents, in case you die or become disabled.

Once those documents are in place, you have authority to act as your father’s agent in a fiduciary capacity. You must always act in his best interest. Your sister’s only opportunity to interfere is to file for Guardianship, and she is blocked by the Declaration of Guardian.

The next thing your father and you should consider, once the legal issues are settled, is healing his relationship with your sister. She resents that he does not want her help, which means that she does desire to help. Is her pushiness a symptom of his rejecting her? As he ages, your father would do well to re-examine how he relates to your sister and might seek the assistance of a family therapist to address the emotional issues.