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Today, we’re going to talk about incapacitation and how a Durable Power of Attorney can avoid a Guardianship proceeding. First, let’s clarify some terms.


The term “incapacitated person” includes an adult individual who, because of a physical or mental condition, is substantially unable to provide his or her own food, clothing, physical health, financial affairs, or sheltering needs. 

The term Power of Attorney (“POA”) refers to the legal instrument by which an individual (the “Principal”) designates and authorizes another person to act on his or her behalf (as the “Agent”) in legal, financial and/or medical matters. A Durable POA authorizes the Agent to act on the Principal’s behalf in financial matters, and a Durable Medical POA grants the Agent the authority to make healthcare decisions for the Principal. If properly drafted, a Durable POA will survive the Principal’s incapacity and permit the Agent to act even if the Principal loses the ability to understand the purpose of the durable POA.

Guardianship refers to the process by which the court appoints a person to make personal decisions for another individual (with guardianships, the term “Proposed Ward” is used to refer to the incapacitated individual). While there is no statutory definition of a “guardianship,” Section 1001 of the Texas Estates Code provides that the policy and purpose of a guardianship is to “grant another person or entity limited authority over an incapacitated person to the extent required by such person’s mental and physical limitations.” 


If you suddenly become incapacitated and are unable to make legal, financial, and/or medical decisions for yourself, then someone must step in and take over such decision-making responsibilities for you in your place.

Guardianship Proceeding

The Guardianship process can be timely, complex, and expensive. First, the Court must find that the individual for whom the guardianship is sought is “incapacitated”, based on evidence of recurring acts or occurrences within the 6-month period prior to the proceeding. The Court must also find, among other things, that the person seeking to be appointed as Guardian is eligible to act as the proposed ward’s guardian. Once a guardian is appointed, then the incapacitated person becomes a protected ward and loses many rights that he or she would otherwise have if not for the guardianship. This is why a guardianship is the “last resort” for incapacitated individuals, and a Court will only appoint a guardian if it determines that a guardianship is necessary and is the least restrictive alternative available. 

Not only is this a complex legal proceeding, but this process can take months to be finalized and have a guardian appointed. More time in court means more money that has to be spent on attorney’s fees, filing fees, and other costs associated with a legal proceeding. This means that your loved ones will not only have to go through this process and pay for its expenses, but they will have to wait months before they are able to start making financial and medical decisions for you.

Durable POA as an Alternative to Guardianship

Fortunately, there is a way to avoid your family members having to go through a Guardianship proceeding in the event that you become suddenly incapacitated: by executing a Durable Power of Attorney (POA) while you have the legal capacity to do so. A person who has already been declared incapacitated by a court cannot sign a durable POA–this is why it is crucial for you to have an attorney draft a durable POA for you and for you to sign it before you become incapacitated or otherwise unable to make financial and medical decisions for yourself. 

If you execute a valid durable POA while you are competent and well, and later become incapacitated and unable to make decisions for yourself, then your appointed Agent will be able to step in and make financial and/or medical decisions for you on your behalf. Your family members will not have to go through a lengthy Guardianship proceeding, and your decision-making will be handled by the trusted person whom you chose to appoint as your Agent in your Durable POA documents. 

Don’t wait until it is too late. Consult an experienced Estate Planning Attorney today and ensure that your future is taken care of. With a comprehensive estate plan in place, your loved ones will not be left with the difficult decision of who should be the one to step in and make decisions for you if something were to happen that made you unable to do so yourself. 

Invitation from Springdale Law Group

Springdale Law Group is one of a few law firms that ensure the well-being and future of yourself and your family by assisting in drafting, reviewing, and finalizing your advanced healthcare directives.  As a comprehensive estate planning firm, we are proud to provide this essential service to individuals. Our team is fluent in English, Chinese, and Spanish and can assist with wealth management and estate planning in all 50 states.