USA – TEXAS Law and Practice Contributed by: Perrin Clark, Ytterberg Deery Knull LLP
8. Planning for Minors, Adults with Disabilities and Elders 8.1 Special Planning Mechanisms In Texas a court may appoint a guardian to make decisions for a person who lacks capacity, whether the incapacity is the result of age or otherwise. The incapacitated person is referred to as the “ward”. A guardian may be appointed for the ward’s person, estate or both. The guardian of the person is respon - sible for decisions involving day-to-day living, health - care, and similar matters. The guardian of the person is responsible for decisions involving financial affairs and property. A guardian’s power may be broad or may be limited in various ways, preserving ungranted powers for the ward to the extent that the ward is deemed to have decision-making capacity. In Texas, a guardianship proceeding is often initiated with a court petition by an interested party and initially results in the appointment of a temporary guardian with lim - ited powers, as the circumstance requires. During the guardianship proceeding to determine if a permanent guardian will be appointed, the proposed ward has the right to counsel and an attorney will be appointed to represent the proposed ward if one has not already been retained. In Texas there has been a significant push to create effective alternatives to guardianship for the purpose of allowing potential wards to continue to make their own decisions to the greatest extent possible, thereby reducing or eliminating the need for formal guardian - ships of either the person or the estate. Some alterna - tives to guardianship include, without limitation: • using “supports and services”, whether formal or informal; • supported decision-making agreements; • statutory durable and medical powers of attorney; • inter vivos trusts, including revocable trusts; • special and supplemental needs trusts, whether self-settled or created by third parties; • Section 1301 management trusts; and • Uniform Transfers to Minors Act (UTMA) accounts. 8.2 Appointment of a Guardian Guardians are appointed by the court. However, indi - viduals can specify during life whom they would like
to serve as the guardian of their person, estate, or both if the need should arise and the court will con - sider such requests. Guardians are subject to ongoing supervision by the court and are required to periodi - cally account to the court regarding the ward and their actions as guardian. 8.3 Elder Law Long-term care insurance has become more available and its use has gained in popularity over the past two decades as the post-World War II “baby boomer” generation entered retirement, and demographics in the United States and Texas shifted towards an older population. See 8.1 Special Planning Mechanisms . 9. Planning for Non-Traditional Families 9.1 Children Adopted Children In Texas an adopted child is treated as a legal descend - ant of their adoptive parent or parents, meaning the adopted child and the adopted child’s descendants will inherit from and through the adoptive parent or parents in the same manner as a biological child. How - ever, in Texas the rights of an adopted child to inherit from their biological parents is not severed unless they are adopted as an adult, or the court by order specifically provides for such severance. Regardless, once a child is adopted, their biological parent(s) and the kindred of their biological parent(s) may not inherit from or through an adopted child. Out-of-Wedlock Children In Texas the mother-child relationship is established by a woman giving birth to a child; however, it can also be established by adjudication of maternity and by adoption. Contrastingly, the father-child relationship is commonly based on a presumption if the father is married to the mother at the time of the child’s birth, although this presumption may arise in other circum - stances too. A father-child relationship can also be established by other methods, including, without limi - tation, by adjudication of paternity, by adoption, and by acknowledgement of paternity. The Texas Family Code provides a specific process for the voluntary acknowledgement of paternity.
699 CHAMBERS.COM
Powered by FlippingBook