Nov 25, 2019Elder Law

Leslie Thomas, Attorney

Suing dad. What happens when you can’t make decisions anymore, when you can’t sign your name, when you can’t request your medical records or do what needs to be done? You may reach a point in your life where you are unable to take care of daily necessities or make effective choices, and under those circumstances, your loved ones may have to sue you to properly take care of you.

Richard has Alzheimer’s disease and lives alone. His children are worried about their dad because his neighbors had called for the second time to let them know that they helped Richard get back home after finding him lost walking around the neighborhood. Richard left the stove on recently and started a small fire that thankfully didn’t harm anyone, but did cause some smoke damage in the house. Richard has also lost a significant amount of money after some phone scammers convinced him to give them his bank account number. Richard’s children are worried about him and are afraid that they can’t be there enough of the time to make sure that he is safe as his condition worsens. The problem is that Richard refuses assistance from the meal delivery and home-care services that the children have tried to set-up and is refusing any further care that the children believe is necessary to protect him.

All Richard’s children want to do is to protect their dad’s health and well-being and keep him from being exploited financially again in the future. Richard did not have anything in place to address this type of situation, and as a result, his children have to sue their dad in the Tarrant County Probate Court to obtain Guardianship over him. Guardianship will give them the same authority that parents have over their minor children and will allow them to take care of Richard, who is now mentally incapacitated due to Alzheimer’s disease.

To obtain Guardianship over their dad, the children will need to sue their dad, have a judge declare that Richard is incompetent and prove to the court that they are the appropriate guardian in this situation. This process can be emotionally draining and expensive depending on the circumstances surrounding the individual with mental incapacity. It may feel like racing against time if they are in danger of being exploited financially or are in physical or other danger as a result of their condition.

Many people would rather avoid the guardianship process altogether as it takes time, can be expensive, and the details of your incapacity may become public knowledge since the process involves court proceedings. One part of effective estate planning includes determining who will have authority to care for you and your finances if you are no longer capable of doing so for yourself. The good news is, that if you plan in advance, a comprehensive estate plan will allow you and your loved ones to avoid the guardianship process altogether.

Effective options that avoid Guardianship include powers of attorney and living trusts. Powers of attorney are legal documents that allow you to give authority to someone to conduct your affairs. It is important to understand that these are only voluntarily accepted in Texas, meaning that a bank or title company may choose not to accept the documents which would could still result in Guardianship proceedings. A living trust is another option that can avoid a guardianship, and does so by allowing you to name a successor trustee to manage your assets should you become incapacitated in the future.

Regardless of what stage of life you are in, unforeseen circumstances can occur, and it’s important to prepare for the unexpected. Effective estate planning allows you to answer the question, what happens when I can’t make decisions anymore? A customized and well-thought out plan made today will keep you and your loved ones from having to consider or experience – suing dad.

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