While many proactive individuals understand the importance of a comprehensive estate plan, they often assume it only addresses what happens after death. Yet, a comprehensive estate plan is for more than after a loved ones passing. It can address questions and help family navigate the confusing and sometimes chaotic time known as incapacity. Thus allowing your estate plan to provide the necessary protections so you can reap the benefits during your lifetime.
Planning for Incapacity
Incapacity—the inability to manage personal or financial affairs due to conditions such as age, illness, mental illness or addiction—can occur at any stage of life. Nearly 29 percent of adults live with some disability, and about 14 percent have a cognitive impairment.[1] The risk of incapacity increases with age. Over 30 percent of Americans over 65 have a disability, rising to more than half of those over 75.[2] Many older adults experience physical or cognitive decline affecting their ability to manage personal, financial, or legal matters. Dementia, stroke, or age-related impairments often cause this loss of capacity, making decision-making or self-advocacy difficult or impossible. Proactive estate planning lets a person decide in advance how their affairs will be managed if incapacity occurs. Without a plan, the court may appoint someone to act on behalf of the incapacitated person, potentially affecting their lifestyle, medical care, and financial security.
Here is an example:
When Alex was in his 40s, he created a cursory estate plan—a simple will naming who would get his accounts and property. However, he did not update it as he aged. In his late 70s, Alex developed Alzheimer’s disease. While trying to provide care for him, Alex’s family and loved ones were unclear about who could act on his behalf or what his healthcare and financial wishes were. Because Alex had not legally appointed someone to manage his affairs if he was ever incapacitated, the court had to become involved and appoint a guardian.
What Is a Guardian or Conservator?
The person appointed by the court to make decisions for an incapacitated person is known in Texas as a Guardian, while other states may refer to this person as a Conservator. Texas further separates guardianship into Guardian (or Conservator) of the Person — the individual who handles personal and medical decisions for the incapacitated person — and Guardian (or Conservator) of the Estate — the individual who manages financial and legal affairs for the incapacitated person.
Terminology of legal proceedings, appointed decision makers, and incapacitated persons under the court’s care vary from state to state, but the core of the matter remains the same, naming someone to step in on behalf of another who is unable to care for themselves.
Four Reasons to Avoid Guardianship or Conservatorship
In an incapacity proceeding, the court’s goal is to determine and implement solutions that will serve the incapacitated individual’s best interests. However, relying on a court-appointed guardianship or conservatorship is not an ideal substitute for comprehensive estate planning for several reasons:
- High costs. Simply put, all legal proceedings are expensive, and guardianship actions are no exception. Legal fees and court costs can quickly chip away at the value of an estate’s money and property, leaving less for the care of the incapacitated person and their loved ones after they pass.
- Family conflict. A major drawback of a guardianship determination is family conflict. Courts deciding who can manage affairs can spark disputes over suitability, or even dredge up long simmering tensions between family members. These conflicts may escalate into costly legal battles, strain relationships, and divert attention from the incapacitated person’s care.
- Lack of privacy. A guardianship determination is a court-supervised proceeding and becomes part of the public record, meaning that aspects of your private affairs, both medical and financial, are often open to public view. Returning to our example, if Alex had known he could have addressed incapacity in his estate plan, he might have appreciated that doing so would spare his loved ones the financial and emotional burden of a legal proceeding. Perhaps even more important, he may have seen the value of keeping his personal and financial affairs private rather than having them aired in a public forum.
- Lack of clarity. Caring for loved ones is full of guesswork. Even if Alex had appointed trusted decision makers under tools such as Powers of Attorney, they still may not know his wishes to his long term medical care. If Alex had appointed trusted agents under medical and financial powers of attorney, his affairs would be handled as he wished. Without legally documented preferences, he cannot clarify his wishes, and the court must intervene. While the court tries to determine Alex’s best interests, it may appoint someone he would not have chosen. Once his care is under court supervision, restrictions or prior approvals may be required for certain decisions or transactions.
How to Structure Your Estate Plan
While no estate plan can fully guarantee no guardianship will be needed, a well crafted and fully optimized one can help avoid it as much as possible. You can take a few specific steps in your estate plan to ensure that your affairs never end up in a court-appointed guardian’s hands:
- Powers of attorney. A complete estate plan includes durable powers of attorney, letting you appoint trusted agents if you cannot manage finances or medical care. These documents ensure your chosen people, not the court, make decisions. They can also name a preferred guardian or conservator if court involvement is necessary. A healthcare power of attorney covers medical and personal care decisions. A general durable (financial) power of attorney manages finances, bills, investments, and business matters. Together, these documents maintain continuity, reduce family conflict, and keep control with those you trust.
- Long-term care planning. You may never need long-term care, including daily assistance or medical support from illness, disability, or aging. However, including long-term care in your estate plan provides peace of mind and ensures your wishes are followed. For example, an advance directive can state your preferences for end-of-life medical treatments. This planning can also help protect your money and property from being spent on medical costs instead of going to your beneficiaries.
Avoiding guardianship and conservatorship—and the stress and expense of a legal proceeding—is a relatively pain-free process if handled well ahead of time. Call us today to review the parts of your estate plan that may need updating to ensure the best possible outcome for you and your loved ones. We can quickly ensure that your plan is comprehensive, current, and built to protect your wishes. Nielsen Law PLLC Provides family-focused estate and business planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information, and to learn about our firm, please contact us to learn how.
[1] Disability Impacts All of Us Infographic, CDC (Apr. 14, 2025), https://www.cdc.gov/disability-and-health/articles-documents/disability-impacts-all-of-us-infographic.html.
[2] Aging and the ADA, ADA Nat’l Network, https://adata.org/factsheet/aging-and-ada (last visited Nov. 7, 2025).
