[TX] Can a POA holder file a Lady Bird Deed to avoid probate, and is guardianship needed if the owner has dementia?

TX Estate Planning

Liz

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The Lady Bird Deed would cover that. It would transfer it to you if the listed beneficiary upon her death without probate.

With guardianship, you could then get court approval to do the transfer with the Lady Bird Deed. That would have the benefit that it can avoid your siblings being able to challenge the transfer since it's just to you and not to all of you.

Guardianship is a court-appointed role where you have legal authority to make decisions for someone who can't make them themselves. It can cover personal, financial, and medical decisions (TX Est Code § 1151.101). A POA, on the other hand, is granted by the person themselves when they are still capable, allowing someone to act on their behalf. Guardianship can essentially give court backing to the decisions that the POA doesn't have.

Texas Lady Bird Deed

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Hi I’m my mother’s POA and I need to file a Lady Bird Deed. We’re located in Texas.

Lexi, Chatbot

I understand that handling your mother’s affairs can be challenging. Have you already gathered all the necessary documents required for filing the Lady Bird Deed?

I’m not sure.

Lexi, Chatbot

Is there a specific timeline you are working with for completing this deed?

Soon, within a week or so.

Liz

Hi there! My name is Liz and I’ve been an attorney for more than a decade, and I am here to assist with your legal concerns. So I can best help, what concerns do you have with filing the deed?

I’m my mother’s POA. My main goal is to protect my mother’s assets. I just don’t want to go to probate court in the event she passes away. I also didn’t want random people coming from all over to try and petition for her home.

Also with me being POA and doing the Lady Bird Deed, will I need guardianship or is that unnecessary? Her dementia is getting worse. She has good days when she is coherent. And other days when she has a cognitive decline.

I have full financial, property, and medical power if needed.

My siblings have taken advantage of my mother and I’m the only one taking care of her. My aunt helps during the day while I work, but I’ve been taking care of her for this long.

Do we need guardianship or does that not grant anything the POA can’t?

Liz

The Lady Bird Deed would cover that. It would transfer it to you if the listed beneficiary upon her death without probate.

Yes ma’am. Can they challenge a Lady Bird Deed?

Liz

A Lady Bird Deed is generally strong against challenges because it doesn't transfer ownership until after your mother's passing. However, once she passes, they could try to reverse the transfer by arguing, for example, that she didn't have capacity to consent and you did it to benefit only yourself, even if that is not the case.

Yes ma’am, thank you. Should I try to see if she can sign the forms with a notary present or proceed with guardianship to be on the safe side?

Liz

That is, of course, a personal choice. We can only provide information, so I can't tell you what to do. However, guardianship could avoid future issues if she's not 100% lucid.

Yes ma’am. Thank you.

Liz

You're very welcome!

I really appreciate you taking the time to meet with me today. I’ll talk it over with her and some of my family to see the best route.

Liz

Of course! I hope this helps!

Liz

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