Dear Mr. Premack: I have had a falling out with one of my sons. He
lives in another state, so when I met with my lawyer to do a new power of
attorney, I chose my daughter as agent. She lives just around the corner
from me and is always available. My son says that he should be the person
in charge if something would happen to me, and won’t listen to my
reasoning at all. He’s become unreasonable and angry. I’m afraid he’ll try
to grab control from her if I end up in the hospital. Is there any way to
keep him out of my business now that I’ve decided my daughter should be in
charge? – E.C.
When you sign medical and financial durable
powers of attorney, you are voluntarily granting authority to someone you
trust to make the decisions in accordance with your wishes should you
later become incapacitated. Your agent should have authority to take care
of your medical and financial needs. You are concerned that someone you
decided to exclude – in this case your son – may use some legal procedure
to force control into his hands.
You may consider seeking to heal
the rift between you and your son. Living outside Texas is not the
logistical burden it was in years past. You may want to consider that
there are some tasks with which your son can be trusted, although he lives
If not, then you need a way to legally block him from
filing with the court to take control of the powers you granted to your
daughter. He can only do so if the court rules you have become
incapacitated. The Texas laws which created both types of powers of
attorney state that if a court appoints a permanent guardian over you, the
powers of attorney become void. How can you control the situation so that
your choice – your daughter – will retain control? One option is to block
him from becoming your Guardian.
You should have your attorney
create a “Declaration of Guardian” for you while you are still capable and
competent. Your declaration cannot be verbal; it must be written and
signed. In it, you list your choice for guardian if, in the future, the
need for a guardian arises. You should also name one or more alternative
choices to serve if your first choice is not available.
feature of the Declaration of Guardian is that it gives you the power to
disqualify any individuals from ever becoming your guardian under any
circumstances. This protects you from people you may want to avoid
becoming your guardian, like your son or former spouses or other intrusive
relatives. The Declaration gives you control over the identity of your
future guardian if one is ever needed.
The law allows you to make
a formal self-proven Declaration of Guardian which you sign before two
witnesses and a notary. The witnesses must be age 14 or older. The people
you have selected as guardian and alternative guardians cannot be
To be “self-proven” you must include statutory language
which is also signed by you and the two witnesses before a notary. Why add
self-proof? A self-proven Declaration can be admitted into evidence by the
Judge (if someone starts a court case to impose a guardianship) without
the testimony of witnesses as to your competency and without further
evidence that the execution of the declaration was proper.
self-proof is included, your lawyer will not have to present any
additional evidence that the Declaration’s signing was done with the
formalities and under the circumstances required by law to make it a valid
Declaration. The law allows the Judge to assume that the choices you made
in your self-proven formal Declaration are valid. Texas Law assumes you to
have been competent when you signed it, and the Judge assumes that the
person you chose as guardian will act in your best interest.