Dear Mr. Premack: I have had a falling out with one of my sons. He lives in another state, so when I met with my lawyer to do a new power of attorney, I chose my daughter as agent. She lives just around the corner from me and is always available. My son says that he should be the person in charge if something would happen to me, and won’t listen to my reasoning at all. He’s become unreasonable and angry. I’m afraid he’ll try to grab control from her if I end up in the hospital. Is there any way to keep him out of my business now that I’ve decided my daughter should be in charge? – E.C.
When you sign medical and financial durable powers of attorney, you are voluntarily granting authority to someone you trust to make the decisions in accordance with your wishes should you later become incapacitated. Your agent should have authority to take care of your medical and financial needs. You are concerned that someone you decided to exclude – in this case your son – may use some legal procedure to force control into his hands.
You may consider seeking to heal the rift between you and your son. Living outside Texas is not the logistical burden it was in years past. You may want to consider that there are some tasks with which your son can be trusted, although he lives elsewhere.
If not, then you need a way to legally block him from filing with the court to take control of the powers you granted to your daughter. He can only do so if the court rules you have become incapacitated. The Texas laws which created both types of powers of attorney state that if a court appoints a permanent guardian over you, the powers of attorney become void. How can you control the situation so that your choice – your daughter – will retain control? One option is to block him from becoming your Guardian.
You should have your attorney create a “Declaration of Guardian” for you while you are still capable and competent. Your declaration cannot be verbal; it must be written and signed. In it, you list your choice for guardian if, in the future, the need for a guardian arises. You should also name one or more alternative choices to serve if your first choice is not available.
A key feature of the Declaration of Guardian is that it gives you the power to disqualify any individuals from ever becoming your guardian under any circumstances. This protects you from people you may want to avoid becoming your guardian, like your son or former spouses or other intrusive relatives. The Declaration gives you control over the identity of your future guardian if one is ever needed.
The law allows you to make a formal self-proven Declaration of Guardian which you sign before two witnesses and a notary. The witnesses must be age 14 or older. The people you have selected as guardian and alternative guardians cannot be witnesses.
To be “self-proven” you must include statutory language which is also signed by you and the two witnesses before a notary. Why add self-proof? A self-proven Declaration can be admitted into evidence by the Judge (if someone starts a court case to impose a guardianship) without the testimony of witnesses as to your competency and without further evidence that the execution of the declaration was proper.
When self-proof is included, your lawyer will not have to present any additional evidence that the Declaration’s signing was done with the formalities and under the circumstances required by law to make it a valid Declaration. The law allows the Judge to assume that the choices you made in your self-proven formal Declaration are valid. Texas Law assumes you to have been competent when you signed it, and the Judge assumes that the person you chose as guardian will act in your best interest.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, January 11, 2013