Guardianships in Texas and Your Adult Children

Grant Bux’s daughter Kathy “Kitten” Bux is quite the singer. She had her own record deal when she was 15 and hit it big when she became the executive producer of her fifth studio album at 26. But then, depending upon who you ask, Kitten had emotional and mental issues that prompted Grant to ask for a guardianship of Kitten. The Court decreed a guardianship; Grant is the guardian. Can a parent take over the responsibility for the physical and financial well-being of their adult child? If so, how, why and for how long?

Last Thursday, Britney Spears’ dad Jamie agreed to step down from his role in her conservatorship “when the time is right” after the Los Angeles judge hearing the case denied a request by Britney’s lawyers to remove him from his role. In California, a conservator is someone appointed by the court to manage and arrange the financial affairs and/or daily needs of another.

Texas

While the application of the concepts is very similar from state to state, the terminology can vary. A Texas guardianship proceeding is governed by the Texas Estates Code and is for the appointment of a guardian of an incapacitated person which means a minor or an adult who, because of a physical or mental condition, is substantially unable to (i) provide food, clothing, or shelter for himself or herself; (ii) care for the person’s own physical health; or (iii) manage the person’s own financial affairs. Although often managed as one “guardianship,” the first two are a “guardianship of the person,” and the last is a “guardianship of the estate.” On the other hand, in Texas a “conservatorship” is a creature of the Texas Family Code and deals uniquely with the legal and physical aspects of sharing minor children when the parties are no longer or have never been married. Some people say “custody,” but only “conservator” appears in Texas law. The best interest of the child is the court’s primary consideration in determining: (i) “sole managing” or “joint managing” conservatorship; (ii) the allocation of the rights and duties regarding the minor child, (iii) what time the child will spend with each parent, and (iv) the amount and provider of financial support.

So, yes, just like in California with Britney Spears, Grant Bux can become the guardian of the person and of the estate of his adult child Kitten. Yet, generally speaking, Texas guardianships are more commonly implemented for a minor child – if both parents are killed in an accident, for example – or for someone who is very old, or someone with a debilitating illness. Understandably, an adult who believes they have sufficient mental capacity wants the sole responsibility to care for themselves – and their finances. So, the determination that an adult child is “substantially unable” to care for themselves is a significant and delicate decision. With a minor child, there is an easy end date – when the child turns 18 (or if they successfully petition a court under other applicable law). For someone who is very old or who has a debilitating illness, having an end date is less crucial because of the likelihood they will not recover their mental capacity. The duration of Kitten’s guardianship is problematic if it is open-ended. She will demand the right to resume control of “her life.” Grant may want to consider other intermediate options that are less onerous.

Alternatives

Texas law requires that, Grant should first consider one or more of the following statutorily preferred alternatives, among others, to help Kitten address her personal and financial deficiencies:

1. Execution of a medical power of attorney under the Texas Health and Safety Code;
2. Appointment of an attorney in fact or agent under a durable power of attorney;
3. Execution of a declaration for mental health treatment under  the Texas Civil Practice and Remedies Code;
4. Establishment of a joint bank account;
5. Creation of a management trust under Chapter 1301, which requires the appointment of an attorney ad litem.
6. Designation of a guardian before the need arises under Subchapter E, Chapter 1104; and
7. Establishment of alternate forms of decision-making based on person-centered planning.

While these may not immediately solve Kitten’s problem, if they can be agreed upon between Grant and Kitten, they offer an intermediate solution that might well avoid the aggressive conflict (and cost) of court-involved litigation.

Tilting the Scales in Your Favor

This list is certainly not exhaustive. Through collaboration or other creative planning, there are, undoubtedly, other options that Grant and Kitten could tailor to their specific circumstances. For starters, Grant and Kitten must first set aside any family baggage and have a solid, trusting relationship. If they can do so, there is, quite likely, no one better than Grant to assist Kitten in “getting back on her feet.” Yet, as we all know, family drama, and the opportunity to take control of a large sum of money, can be hard to set aside, much less slug through.

More and more, in our prospering world, we are equipping our adult children to “succeed” monetarily without necessarily preparing them mentally and emotionally to deal with that success. In a similar vein, our own parents are succeeding monetarily – many beyond their wildest dreams – and then ill-equipping those of us who inherit their wealth to handle it.

These issues are going to intensify over the upcoming years as money in the economy becomes inflated and the “Greatest Generation” passes on. Consider discussing your planning needs and unique family situation with a wise confidant, perhaps several friends who appear to have demonstrated successful family lives and appropriate child-rearing over the years, a close friend of many years who knows you well, an attorney who seems to put your best interest first, or the like.

from Texas Bar Today https://ift.tt/380bahK
via Abogado Aly Website