What Your Children Need If You Become Incapacitated in Texas

Most parents have thought about who would care for their children if they died. Far fewer have planned for what would happen if they were still alive but temporarily or permanently unable to make decisions.

A serious accident, stroke, sudden illness, or cognitive decline can leave a parent unable to manage money, communicate with doctors, or care for a child. The family may know what the parent would have wanted, but knowing is different from having legal authority to act.

A complete estate plan should address incapacity as carefully as it addresses death.

Incapacity Can Create Two Separate Problems

When a parent becomes incapacitated, the family may need someone to handle two different sets of responsibilities.

First, someone must manage the parent’s personal, medical, and financial affairs. Bills still need to be paid. Insurance claims may need to be filed. Doctors need a legally authorized person who can make medical decisions when the patient cannot.

Second, if the parent has minor children, someone must be able to care for them. That may include taking them to school, speaking with teachers, consenting to medical treatment, obtaining prescriptions, and making day-to-day decisions.

One document rarely solves both problems.

Your Children Need an Adult Who Has Authority to Care for Them

Suppose both parents are injured in an automobile accident. A grandparent or sibling may immediately step in to care for the children. That person may know the children well and may be the obvious choice.

But schools, doctors, insurance companies, and other institutions may require proof that the caregiver has authority to act.

Texas law permits parents, in appropriate circumstances, to sign an authorization agreement allowing a qualified non-parent adult caregiver to perform certain duties for a child. Depending on the document and circumstances, those duties may include obtaining medical care, handling school matters, securing public benefits, and addressing other child-related needs. Texas also provides court procedures for temporary authorization when a child’s welfare requires it and a parent is unavailable.

A written authorization can reduce confusion during a temporary emergency. It doesn’t necessarily replace a formal guardianship when a longer-term arrangement is required.

Parents should identify:

• The person who should care for the children immediately
• At least one backup caregiver
• Where the children should stay
• Who may make medical and educational decisions
• How the caregiver will obtain money for the children’s expenses
• Where important records and instructions can be found

The chosen caregiver should be aware of the plan before an emergency occurs.

Your Children Need a Guardian Nomination

A caregiver authorization addresses immediate needs. A guardian nomination addresses the possibility that a court may need to appoint someone with continuing legal authority.

Texas law allows a parent to name, by will or written declaration, the person the parent wants appointed as guardian of the parent’s minor children. The court retains responsibility for determining whether the proposed guardian is eligible and whether the appointment serves the children’s best interests, but the parent’s written selection carries substantial legal significance.

Parents should usually name more than one person in order of preference. The first choice may die, become ill, move away, or be unable to serve when needed.

A guardian nomination should also identify people whom the parent does not want appointed when there is a legitimate reason for that restriction. Those reasons should be discussed carefully with an estate planning attorney rather than stated casually or emotionally.

Your Children Need Financial Support That Someone Can Actually Access

Even when the right person is available to care for the children, that person needs a lawful way to pay for food, housing, school expenses, medical care, and other necessities.

A durable power of attorney can authorize a trusted agent to manage the parent’s financial affairs in the event of incapacity. The agent may be authorized to manage bank accounts, real estate, insurance, taxes, debts, business matters, and other property. A Texas statutory durable power of attorney doesn’t authorize the agent to make medical decisions; health-care authority must be addressed separately.

The document should be tailored to the family rather than treated as a generic form. Parents should consider whether the agent will have enough authority to:

• Pay the mortgage, utilities, and household expenses
• Maintain health and automobile insurance
• Access funds for the children’s care
• Deal with employers and benefit providers
• Manage a rental property or a business
• Apply for available government or insurance benefits
• Support a child who has special medical or educational needs

Some parents choose one person to care for the children and another person to control the money. That division can work well, but the documents should clearly explain each person’s authority to avoid conflict.

Your Children Need Someone Who Can Make Medical Decisions for You

Children may be deeply affected by a parent’s medical crisis even when they are not responsible for making decisions. A properly signed medical power of attorney identifies the adult who may make health-care decisions if the parent loses decision-making capacity.

Texas law treats a medical power of attorney as a separate health-care document. It allows the appointed agent to make covered medical decisions when the statutory conditions for the agent’s authority have been met.

Parents should choose someone who can communicate with doctors, understand difficult information, remain calm under pressure, and follow the parent’s wishes.

A complete incapacity plan may also include:

• A HIPAA authorization allowing specified people to receive medical information
• A directive to physicians addressing end-of-life treatment
• A declaration of guardian stating who the parent would prefer as guardian of the parent’s own person and estate
• Instructions concerning physicians, medications, insurance, and medical history

Without appropriate documents, relatives may encounter delays in receiving information or may disagree about who has authority.

Adult Children Need Documents of Their Own

Parents often assume they can automatically make decisions for an unmarried adult child. That assumption is usually wrong.

Once a child turns 18, they are legally an adult. A parent may no longer have automatic authority to access medical information, speak with a physician, manage a bank account, or make legal decisions for that child.

College students, young adults living at home, and adult children who remain financially dependent on their parents should consider signing their own incapacity documents. These commonly include:

• A medical power of attorney
• A HIPAA authorization
• A durable power of attorney
• A directive to physicians
• A declaration of guardian

These documents don’t deprive the adult child of independence. They allow the child to choose who may help if an accident or illness makes personal decision-making impossible.

Without them, parents may be forced to seek court intervention before they can act.

Children With Disabilities May Require Additional Planning

A child with a disability may need support beyond age 18. The correct plan depends on the child’s abilities, benefits, medical needs, and financial circumstances.

Some adult children can sign powers of attorney and other planning documents. Others may need a supported decision-making agreement, a carefully limited guardianship, or another legal arrangement. Texas law recognizes alternatives to guardianship as part of the analysis of whether a guardianship is necessary.

Parents should also consider how an inheritance would affect eligibility for needs-based public benefits. Leaving assets directly to a child receiving Supplemental Security Income or Medicaid can create problems. A properly drafted supplemental needs trust may allow funds to be used for the child without giving the child direct ownership of the inheritance.

This planning should begin before a crisis and, when possible, well before the child’s eighteenth birthday.

Your Children Need Practical Information, Not Only Legal Documents

Legal authority matters, but the person stepping into your role will also need information.

Prepare a written family information guide that includes:

• The children’s full legal names and dates of birth
• School and daycare information
• Physicians, dentists, therapists, and pharmacies
• Medications, allergies, and medical conditions
• Health insurance information
• Emergency contacts
• Daily routines
• Religious or cultural preferences
• Information about pets
• The location of estate planning documents
• Contact information for your attorney, financial adviser, and insurance agent
• Instructions for accessing essential digital accounts

Passwords shouldn’t be written in an unsecured document. Use a secure password manager or another protected system that the appropriate person can access when necessary.

Review the information at least once a year. A plan listing an old-school, discontinued medication or a former caregiver may be of little help during an emergency.

A Will Alone Is Not Enough

A will generally becomes effective at death. It doesn’t give someone authority to manage your finances, make medical decisions for you, or care for your children while you are living but incapacitated.

Parents need a coordinated set of documents that addresses both death and incapacity. Depending on the family, that plan may include:

• A will or revocable living trust
• A guardian nomination for minor children
• A durable power of attorney
• A medical power of attorney
• A HIPAA authorization
• A directive to physicians
• A declaration of guardian
• A caregiver authorization for minor children
• Trust provisions controlling how money will be held and used for the children

The documents should work together. Names, successor appointments, and financial provisions should be consistent throughout the plan.

Give the Right People Access Before an Emergency

A signed document that no one can find may not help when time is of the essence.

Your agents and proposed caregivers don’t necessarily need to possess every original document, but they should know:

• That the documents exist
• Where the originals are stored
• How to reach your attorney
• Which role have they been asked to fill
• Who else is involved in the plan

Medical powers of attorney and HIPAA authorizations may also need to be provided to physicians or uploaded to patient portals. Financial institutions may have procedures for reviewing durable powers of attorney, so it is better to address possible acceptance issues before incapacity occurs.

The Goal Is Continuity for Your Children

Children need more than a name written into a will. They need a responsible adult who can take charge, legal documents granting that adult authority, and funds that can be accessed without months of court proceedings.

The plan should answer a practical question: If you could not come home tonight, would the people caring for your children know what to do and have the legal authority to do it?

A Texas estate planning attorney can help you create an incapacity plan suited to your children’s ages, your family relationships, your assets, and any special medical or educational concerns.

At Harvey L. Cox, Attorney at Law, I help Texas families coordinate their wills, trusts, beneficiary designations, powers of attorney, and related planning documents so the plan works as intended.

To discuss incapacity planning for your family, schedule a consultation with our office.

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This article provides general information about Texas estate planning law. It isn’t legal advice for any particular person or situation.