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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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No Pre-Planning Leads to Guardianship

This column first appeared in the San Antonio Express News and other Hearst newspapers on February 21, 2020.


Dear Mr. Premack: My brother is married but has been separated and estranged from his wife for seven years. I’ve been his caretaker for years as his dementia has progressively gotten worse. His doctor recommended a long-term care facility, so he was moved there last week. The staff at the facility keeps asking about his wife, and is very reluctant to talk to me. I’ve read about powers of attorney, but don’t know how to get one for my brother. Any suggestions? – H.T.


A power of attorney is the voluntary, knowing delegation of authority from a principal to an agent. Powers of attorney can legally be created to cover financial and business issues, and to cover medical issues. In Texas, financial powers of attorney are often referred to as “Durable Powers of Attorney”, and those for health care issues are referred to as “Medical Powers of Attorney”.


The prerequisite to the valid creation of any power of attorney is legal capacity of the principal. In your situation, your brother would have to understand the meaning of the document, be able to understand its impact, be able to sign (or properly direct someone to sign on his behalf if he is physically incapable of signing but mentally capable). If your brother is in a long-term care facility with a diagnosis of dementia, it is highly unlikely that he has legal capacity to create any kind of power of attorney.


Not to scold you, but as an example to others: this should have been taken care of years ago when he first started to have difficulties. He should not have even waited until he was ill. Rather, the best approach is to see a qualified lawyer to do estate planning (including a Durable Power of Attorney and a Medical Power of Attorney) while the principal is healthy, active, and able to make their own decisions. We call this “advance planning” because it should be done in advance of need.


Under Texas law, spouses have specific legal rights to make medical decisions for each other. The “Consent to Medical Treatment Act” says that the spouse can make medical decisions whenever the other spouse is in the hospital or in a care facility. That is likely why the staff is asking about his wife; she has legal authority to make ongoing medical decisions but you, as his sibling, do not have that authority.


Texas law does not give the spouse broad financial management rights, but does give the spouse legal priority to manage community property (with a court order) or to become Guardian (with a court order). However, whenever a court has to get involved there are going to be attorney fees and court costs. Proper advanced creation of a Durable Power of Attorney and a Medical Power of Attorney would have saved time and money, and would have eliminated the need for the estranged spouse to be involved.


Again, as an example for others: as soon as your brother separated from his wife, he should have consulted with his attorney. They should have discussed whether to file divorce, the effect staying married would have on his finances (community property continues to exist and accumulate even though they are separated), and the powers she still retained over him due to her status as spouse. Even if they did not divorce, he could have named you as Agent for financial and medical issues, could have eliminated her right to become Guardian by issuing a Declaration of Guardian, and so much more. He missed those opportunities for advance planning.


As such, the only solution you have is to hire an attorney and seek Guardianship over your brother. The court will want to know why you should be Guardian instead of his wife. The process could be slow, expensive, and uncomfortable for all involved. But if all goes as you desire, you will upon becoming Guardian have legal authority to care for your brother.

Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.