A second fundamental reason why we plan is to deal with incapacity or disability as opposed to death. Although I can guarantee you all of you will die, I can assure you that most of you will have someone in your family affected by incapacity. Incapacity means the legal inability to make decisions for yourself anymore. It is so common that to not plan for it is negligent. The basic planning is to choose who will make decisions for you in such situations and what rights and restrictions will those decision makers have. The goal in this area of planning is to avoid going to court. With a will, we can’t avoid probate, but with proper planning, we definitely can avoid guardianship.
Guardianship is the court management of your affairs, even if it’s done by a close family member. Guardianship occurs when there is no planning or ineffective planning. So, this area of estate planning is absolutely to avoid having to go to court and to pick the right vehicle to avoid guardianship. One little note about guardianship. It’s not a nasty word. In Texas, the due process safeguards to keep the courts from taking over someone’s life are very robust. The problem with guardianship is it’s expensive. It’s not that the court is doing something bad, it’s just that there are cheaper alternatives, but the cheaper alternatives require planning. You can’t fix the failure to plan once you yourself are incapacitated.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.
