By Colin Smith, Estate Attorney | Contributor
Americans love independence and civil rights, and assume our Courts protect them. Sometimes one’s rights are taken away to guarantee the safety of others. For example, convicted felons can’t have guns. A restraining order prohibits access. CPS may remove children from an abusive home. Or a Court may find that we have a mental health issue that prohibits us from making our own decisions and exerting our independence.
Guardianship is a legal process which can take away someone’s civil rights.
An incapacitated person (called a “ward”) can be likened to a minor child, meaning, a legal guardian makes decisions for them. A person with Alzheimer’s disease is a classic example. Conversely, someone who is turning 18 years of age is gaining civil rights.
Guardianship can be avoided, or at least managed, through proper estate planning.
Estate planning includes (but is in no way limited to) managing (“planning”) what happens in the event of someone’s future inability to make decisions for themselves. Some estate planning documents apply while a person is alive. The main ones include a durable power of attorney (for financial decisions), medical power of attorney (for medical decisions), a HIPAA release (for health care records), a guardianship in the event of later incapacity (enables a person to specify their preference as guardian), and an advance directive (specifies if someone wants to be kept alive on life support.) Other documents, such as trusts, endeavor to avoid guardianship entirely.
When a child turns 18, they become an adult. They can decide who (usually Mom or Dad) can act on their behalf and sign estate planning documents to implement their decisions. Remember, after a child turns 18, a parent no longer has that legal authority unless the child gives it to them. Every adult, within reason, can exercise some control over what happens if they should ever need a guardian.
Estate documents should be accessible and quickly located in case of an emergency. Copies should be provided to agents (an agent is someone who would be acting on behalf of another). Similarly, if someone else has named you as their agent or executor, it helps to know where these documents are located!
For parents of college-bound students, keep copies of these, financial aid information, any lease documents, contact information for any university’s clinic or health center, and contact information for roommates. In the event of an emergency, a parent (agent) may need to move quickly, College students are usually a few hours away, and parents may need to get on the phone with a health professional. A parent (or agent) may need to manage the student’s financial affairs until they’re back on their feet. My parenting advice: contact information helps.
Estate documents should change over time. People’s wants and needs change as they get older, and their estate planning documents should change with them.
It is smart to review them every five years or at any milestone, such as when a child turns 18 or gets married. And for those who have a difficult time discussing this with their elderly parents, doing your own estate documents makes a wonderful segue into the conversation.
ABOUT COLIN SMITH
Colin Smith is an estate planning, probate, guardianship, and real estate attorney who brings a rare mix of technical precision and human understanding to the practice of law.
Before becoming an attorney, Colin spent over a decade as a software developer and consultant. That analytical background, combined with a deep empathy for people navigating life’s hardest moments, is what sets him apart.
He didn’t originally set out to practice this kind of law, but after law school at Southern Methodist University in Dallas, TX.,, he found that helping real people through real challenges gave him a sense of purpose that couldn’t be matched. He is a member of the State Bar of Texas – Probate Section, The Dallas Bar – Probate Section, and the Dallas Trial Lawyers Association.
To learn more about how Colin Smith can help you plan your estate, navigate the probate process, or form a business, schedule an appointment for a free initial consultation at Colin Smith Law.
