I attended the Houston Bar Association’s (HBA) annual all-day guardianship seminar today. By the way, the HBA was founded in 1870, and I was elected to its board of directors this year.
As the seminar got underway, I thought about the different situations where I have represented clients in guardianships, as well as the alternatives to guardianship. As a Houston, Texas medical malpractice attorney, these issues come up from time to time, and I think everyone should think about them far in advance.
What is guardianship?
Guardianship is a versatile legal remedy where a qualified adult can become the legal guardian, or decision-maker, of an incompetent person or minor, called the ward. A court-appointed legal guardian trumps the decision-making of the ward. In Texas, the Estates Code details guardianship procedures, and jurisdiction in Harris County is with our four statutory probate courts.
An applicant for guardianship may file an application to become guardian of a proposed ward’s estate (finances and belongings), person (healthcare and personal decisions), or both.
As I am sure you would hope, the process of having a court review a guardianship application requires personal notification of the proposed ward and other relatives, evaluation by a physician, investigation by court staff and a court-appointed attorney ad litem, and many other steps.
Courts should not approve guardianship applications to prevent people with capacity from making decisions that someone else may think are foolish. We all have the right to make bad decisions. Instead, a successful guardianship applicant must convince the court, by clear and convincing evidence, that a proposed ward is partially or totally incapacitated, which means that some condition is interfering with the person's ability to make decisions.
The court will then tailor-craft a guardianship order to meet the proposed ward’s needs. The court maintains jurisdiction over the guardian’s estate and requires annual reporting by the guardian to make sure that the guardian is behaving in the ward’s best interest.
When is a guardianship necessary?
A minor may need a guardian upon the death of his or her parents, or when then parents are otherwise unable to care for the child.
Adults with disabilities may be unable to take care of themselves and may need a guardian. Many guardianships involve elderly individuals suffering from mid to advanced Alzheimer’s disease or dementia. Parents of minors with disabilities are often encouraged to start the guardianship process six months before the minor turns 18.
Real-world cases that we discussed today include a young man on the autism spectrum who had recently turned 18 years old. A telephone scammer convinced him to provide his debit card number and then made a $500 charge to his account. The father, who was his court-appointed guardian, was able to have the bank reverse that fraudulent charge because he could show that his son lacked legal capacity and authority to consent to the transaction.
Another case shows the flip side. A woman took her 18-year-old son, who had certain mental disabilities, to the dentist. The dentist told the son that he needed to give him a shot so he could do some necessary dental work. The son said, “I don’t want a shot” and was insistent. Without informed consent, the dentist could not proceed and the mother lacked authority to give permission for her adult son. The parents later initiated a guardianship proceeding to avoid situations like this.
What are alternatives to guardianship?
Under 2015 amendments to the Texas Estates Code Section 1001.001, guardianship applicants are required to introduce evidence at the court hearing that they considered less-restrictive alternatives, like a durable power of attorney or medical power of attorney.
Unfortunately, many people are so busy with life that they do not think about these two incredibly useful instruments until it is too late. Two examples of my clients immediately come to mind.
Years ago, I represented a man whose wife went into respiratory and cardiac arrest while receiving dialysis in a clinic. No one was paying attention to her and she sat there in that condition for an extended time, causing permanent brain damage. She survived for several months, first in a hospital and later in a nursing home.
She maintained a separate bank account where her Social Security benefits were direct deposited each month. Her husband was not an authorized signer or user of the account, so he could not access the funds, even though he needed them to be able to assist with her care. With a durable power of attorney, he could have immediately gone to the bank, presented the document, and had access to her account and funds.
Right now, I am representing a man whose wife suffered from a brain aneurysm rupture. She worked at a hospital in the Texas Medical Center and had prompt treatment that saved her life. Later, though, a rehabilitation facility botched her care. We need to obtain her medical records, but her husband does not have a medical power of attorney and the hospital does not want to release them.
Some people call Painter Law Firm and ask if we can create a durable power of attorney or medical power of attorney for their family member who is incoherent, suffering from dementia, or even in a coma. The answer is “no.” There are other solutions that we can offer, but they take more time and money than the powers of attorney that are quick and inexpensive to create before the person loses capacity.
We are here to help
When it comes to hiring a medical malpractice attorney, experience matters. If you or someone you love has been seriously injured by medical or hospital malpractice, our experienced medical negligence attorneys can help. If your potential case may require a guardianship, we can help with that, too, because I have the mandatory Texas Supreme Court certification as a guardianship attorney. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
http://www.painterfirm.com/contact.asp
All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case.
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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
