USA – TEXAS Law and Practice Contributed by: Perrin Clark and Meredith McIver, Ytterberg Deery Knull LLP
Residency A person is a resident of the United States if they have the requisite presence in the United States (ie, accord - ing to the “substantial presence test”) or if they are a long-term permanent resident (ie, a “green card” holder). US residency has implications for US income tax, as discussed in 1.1 Tax Regimes . Citizenship Generally, a person becomes a citizen by being born to a citizen parent, being born in the United States, or being naturalised. However, the legality of birth - right citizenship is currently being challenged in cer - tain circumstances and related lawsuits are pending before various federal courts. Citizenship is important because it is one of the two bases for imposition of US transfer taxes with respect to a person’s worldwide estate. See the discussion regarding US transfer taxes in 1.1 Tax Regimes . Domicile, Residency and Citizenship in Texas Domicile in Texas has little, if any, relevance under Texas law. Citizenship with respect to Texas has no meaning under Texas law. Residency in Texas has some relevance with respect to severing tax residency in a former taxing jurisdiction and qualifying for in- state tuition at certain Texas schools. However, there is no general test for residency (ie, there is no mini - mum number of days required), except with respect to in-state tuition, which generally requires a person to have lived in Texas for 12 consecutive months (or 36 months before graduating from high school). 7.2 Expeditious Citizenship There is currently no expeditious citizenship pro - gramme in the United States (eg, there is no citizen - ship-by-investment or similar programme). However, requests to expedite the adjudication of a naturalisa - tion application and related proceedings are consid - ered, and may be accepted on a case-by-case basis. 8. Planning for Minors, Adults with Disabilities and Elders 8.1 Special Planning Mechanisms In Texas a court may appoint a guardian to make deci - sions for a person who lacks capacity, whether the
incapacity is the result of age or otherwise. The inca - pacitated person is referred to as the “ward”. A guard - ian may be appointed for the ward’s person, estate or both. The guardian of the person is responsible for decisions involving day-to-day living, healthcare, and similar matters. The guardian of the estate is responsi - ble for decisions involving financial affairs and proper - ty. 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 may result in the appointment of a temporary guardian with limited powers, as the circumstance requires. During the guardianship pro - ceeding 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 (named for the Chapter of the Texas Estates Code under which they are established); 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 -
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