The most commonly-used tool to avoid the imposition of a guardianship of the person is the Medical Power of Attorney. When properly drafted and executed, this document can appoint one, or several individuals to serve as the principal's agent at a time when the principal can no longer make decisions regarding his personal welfare. This Power of Attorney is almost always executed as a part of comprehensive estate planning, although it may be updated or altered with the same or more frequency, depending on the circumstances. While these documents so often serve to supplant and avoid the need to appoint a guardian, they are as susceptible to attack as any other contract. Planners and agents alike should be careful to fully appreciate the principal's mental ability surrounding the execution, and careful agents are always well-served to seek the assistance of an attorney in the performance of their obligations.
Statutory Durable Powers of Attorney
Just as a Medical Power of Attorney might obviate the necessity of a guardianship of the person, so too can a Statutory Durable Power of Attorney avoid the need for a guardianship of the estate. By use of this document, an individual can appoint an agent to act on his or her behalf in all things not medically related. Thus, an agent could enter into contracts that would bind the principal, handle their property and financial affairs, or even pursue legal claims on their behalf. Agents serving in this capacity should proceed carefully and diligently in the performance of their obligations, as agents owe principals among the highest of duties to inform and account.
Quite often, guardianship courts will determine that while an incapacitated person might need some assistance, they would be far better served through the creation of a Trust. Management Trusts created under the guardianship code, often referred to as Section 867 Trusts, have all but become the easiest default alternative for Texas courts in such circumstances. Under the relevant provisions, the Court can create a Trust for the incapacitated individual that will require the investment and management of the ward's property while offering the security and safety of professional attention and judicial oversight. As our population continues to age, so too should these tools continue to grow in popularity and usefulness.