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Alterntives to Guardianship

  • Wade Christiansen
  • Sun, 02/11/2018 - 10:55am

As an elderly parent advances in age, mental capacity often decreases.  Adult children want to respect the independence of their parents, but worry about the potential risks to the parent is left to live alone and make decisions independently.  As limitations progress, the question arises whether a guardianship should be sought.  Texas law allows a guardianship only if there is no less restrictive alternative to guardianship, and no supports and services are avaiable to avoid a guardianship.  In other words, Texas law considers guardianship to be a last resort, opting to give the individual maximium independence if possible.  Today's blog will highlight some of the available alternatives to guardianship.  

Medical Power of Attorney

The most commonly used tool to avoid guardianship is the Medical Power of Attorney. This is a simple document that the individual signs, which designates a person (with back-ups as desired) to have authority to make medical decisions on his or her behalf.  A typical estate plan will include a Medical Power of Attorney.  It is important to execute this document before becoming incapacited; otherwise, the person cannot validly execute it.  Hospitals and nursing homes are reluctant to admit a mentally incapacitated person that has signed a Medical Power of Attorney close to the time of admission, as they question the validity of the document signed without mental capacity.

Surrogate Decision-Making

Texas law allows a surrogate to make non-emergency medical decisions for incapacitated persons in a hospital or nursing home, where no guardianship or Medical Power of Attorney exists.  The law designates an order of priority for who has power to make these decisions.  Obviously, an individual does not necessarily wish for default order of priority of persons to be used; therefore, having a Medical Power of Attorney is important.  Nevertheless, if no Medical Power of Attorney has been signed, medical treatment can be consented to by family members without the need for guardianship.  The decision-making priority is (1) the patient's spouse; (2) an adult child of the patient with the consent  of all other qualified adult children of the patient to act as the sole decision-maker; (3) a majority of the patient's reasonably available adult children; (4) the patient's parents; (5) the individual clearly identified to act for the patient by the patient prior to becoming incapacitated; (6) the patient's nearest living relative; or (7) a clergy member.

Durable Power of Attorney

A Durable Power of Attorney gives another person (with back-ups as desired) the authority to make business, legal and financial decisions on your behalf.  All acts done by the designated agent have the same legal effect as if you took that action personally.  The standard form Durable Power of Attorney allows the election of whether you wish the designated agent to have authority immediately, or only upon your incapacity. 

Having an appropriate estate plan can help your family avoid the necessity of a guardianship, and gives you control over the designation of who will make decisions for you in the event you become incapacitated.  The attorneys of Christiansen Law Firm have extensive experience assisting Texans with estate planning, and with guardianships when necessary.  Contact the offices of Christiansen Law Firm in Houston or San Antonio to schedule a consultation to discuss your legal matter.  


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