1. Incompetency
You may not be incompetent now, but do you know what would happen to you and your property if the unthinkable were to happen?
When a person becomes incompetent (by way of mental illness, mental deficiency, physical illness, etc.) a court will appoint a guardian for that person. If a person is totally incapable of caring for himself, managing his property, operating a motor vehicle, and voting in a public election, a court may appoint a guardian of the person or the person’s property, or both. If a person lacks some, but not all, capacity to care for himself or his property, a court can appoint a guardian with limited powers.
Pursuant to section 677 of the Texas Probate Code, if a person becomes incompetent and has no estate plan in place, it is up to a court to appoint a guardian considering the “best interests” of the ward. If the incompetent person, or ward, is married at the time he becomes incompetent, his spouse will be appointed guardian, if not otherwise disqualified. If the ward has no spouse or the spouse is disqualified, the nearest next of kin will be appointed guardian, if not otherwise disqualified. If there is no nearest next of kin, or the nearest next of kin is disqualified, the court will appoint any other person deemed qualified by the court to serve as guardian.
However, section 679 of the Texas Probate Code allows a person, while he is still competent, to declare whom his guardian or guardians will be, should the need ever arise. Further, a person can disqualify any person or persons from serving as a guardian, and any such disqualified person or persons cannot be appointed under any circumstances.
What would happen to your person and your property if you became incompetent? If you have not planned ahead for such a possibility, a court—not you or your loved ones—will decide who will manage your affairs going forward. If you have planned ahead, however, you decide who will manage your affairs.
