Dear Mr. Premack: My mother remarried in her early 60’s and they have been married for over 10 years. They purchased a home together (in both their names) and now that my mother is almost incapacitated her husband wants her to sign over her rights to him, so that when she dies, he will own 100% and be able to leave this to his grown children. We feel he is taking advantage of her when she is not capable of making decisions such as that any longer. We considered a guardianship, but it could take months, and I understand her husband could easily contest it. We could get my mother to name one of her children as power of attorney over her financial affairs; however, I understand he could also coerce her into signing another POA and revoke ours. So, my question is — how can we best protect my mother and her rights? M.C.
Much must be considered when people chose to remarry and they have children from a prior marriage. In many ways, Texas Law gives rights to a new spouse that are not given to the children.
Before someone remarries, they should pre-plan by making a premarital agreement and a Will. The Will can protect the second spouse and the children by recognizing their valid interests and by using a trust to control their inheritances. Also, financial and medical powers of attorney can be used to appoint decision makers, so that when incapacity looms it is clear who has legal authority to act.
Evidently, your mother did not preplan. Now you say your mother is “almost incapacitated,” which means you think she functions at an impaired level, but that there has not been any legal declaration of her incapacity. She is vulnerable but she has the legal right to make her own decisions.
She has the legal right to privacy in her personal and financial transactions. She has the legal right to reside in her homestead even if she has signed ownership over to her husband. If she has legal capacity, she has the legal right to make her own Will and to leave her assets to anyone of her selection. It would certainly not be unnatural for her to leave her share of the homestead to her husband.
She also has the right to be free of exploitation and financial abuse. Neither her children nor her second husband have authority to pressure her into making decisions that she would not otherwise make. You say you want to protect her against her second husband’s perceived scheme to put the house into his sole name. But you mischaracterize your goal. You really want to protect your own right to inherit your mother’s half of the house as opposed to letting your stepsiblings inherit it.
You said that you briefly considered guardianship but felt it would take too long, or be too easily challenged by her husband. Your assessment is correct. Regardless, you may have to face those challenges. Since she did not delegate authority voluntarily while she was in good health, Guardianship is the only way to have a court rule on her legal capacity and to make a binding selection of a person to control her finances and her medical choices.
Guardianship is involuntary on your mother’s part. It is imposed by someone who thinks she is incapacitated and wants to oversee her legal and medical needs. Because it is imposed, a Judge must do everything possible to protect your mother’s rights: she is entitled to legal counsel and the person applying to be Guardian has the burden of proof. Proper evidence of her incapacity must be offered, and if the Judge agrees she is incapacitated the Guardian may only be given authority over those items the Judge rules she is incapable of handling on her own.
Texas law gives her husband legal priority to be Guardian ahead of even her children. You would have to prove that he is unqualified for the job. If you cannot do so and he becomes Guardian, he will then be supervised by the court. He will have to account to the court for all of her financial income and expenses. He will not have authority to transfer her half of the house to himself. Whoever becomes Guardian, your mother will retain her one-half ownership of the homestead.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, July 1, 2011