Alternatives to Guardianship and Preguardianship Planning
This chapter identifies various alternatives to the appointment of a guardian for a proposed ward’s person or estate. These summaries are intended only to inform the attorney of possible alternatives, and sources outside this manual should be consulted if it is determined that one of these alternatives may be an appropriate option.
Note that as of September 1, 2015, consideration of alternatives to guardianships is not only advisable, it is also required. The guardianship sections of the Texas Estates Code include a policy statement requiring the use of less restrictive alternatives to guardianship if such are available and appropriate. See Tex. Est. Code § 1001.001. If the appointment of a guardian is warranted, any guardianship must encourage the development or maintenance of maximum self-reliance and independence of the proposed ward. Tex. Est. Code § 1001.001. However, the court, the applicant, the ad litem, and the fact finder are required to determine if a less restrictive alternative is available and appropriate prior to the appointment of a guardian. Tex. Est. Code §§ 1054.001, 1054.054, 1101.001(b), 1101.101.
The Estates Code now also provides a statutory definition of “alternatives to guardianship,” which offers a nonexclusive list of alternatives:
1.medical power of attorney (see section 3.13 in this chapter);
2.durable power of attorney (sections 3.9, 3.10);
3.declaration for mental-health treatment (section 3.22);
4.representative payee (sections 3.3, 3.4);
5.joint bank account (convenience account) (section 3.2);
6.guardianship management trust (chapter 1301 guardianship management trust) (chapter 11 in this manual);
7.special needs trust (section 3.25:5);
8.preneed designation of guardian (section 3.21); and
9.person-centered decision-making (supported decision-making agreement) (section 3.11).
In addition, the ability of the proposed ward to take advantage of available supports and services to enhance capacity must be considered at every stage of the guardianship process, from investigation into the potential need for a guardianship to modification or restoration of an existing guardianship. See Tex. Est. Code § 1002.031.
A joint account established in the name of the client, before incapacity, and the name of one or more responsible individuals will permit one person to write checks on or withdraw funds from another’s checking or savings account. Tex. Est. Code ch. 113. A “convenience account,” which permits the cosignatories to draw off the account during the depositor’s life to benefit the depositor or to pay his obligations, may also be considered. Tex. Est. Code § 113.004(1). Under this option, the convenience signer has no ownership rights in the account, before or after the death of the depositor, nor does the convenience signer have any right to pledge the assets of the account.
Under proper circumstances, convenience signers may also be added to other multiparty accounts, such as joint tenancy with right of survivorship, pay-on-death, or trust accounts, without granting ownership rights to the convenience signer. Tex. Est. Code § 113.106. But access should not be obtained solely based on the consent of a person who lacks capacity to give valid consent. Therefore, when authorization does not predate the proposed ward’s incapacity, this option may be limited to situations where another person, such as an attorney-in-fact, can give the required authorization.
§ 3.3Appointment of Representative Payee for Receipt of Social Security Benefits
Many elderly and disabled persons receive Social Security retirement income or Supplemental Security Income (SSI) benefits. The Social Security Administration (SSA) provides for the appointment of a “representative payee” to receive the appropriate benefits on behalf of the retired or disabled person if that person is unable to process or manage the funds. See 42 U.S.C. § 1383(a)(2); 20 C.F.R. §§ 416.601–.665. No legal determination of incapacity is required. 20 C.F.R. § 416.601. The appointment of a guardian is also not required.
The power of a court-appointed guardian of the estate to receive and manage these benefits is subordinate to that of a representative payee. The SSA may deny a court-appointed guardian of the estate the right to receive the ward’s Social Security and SSI benefits and may appoint another individual as representative payee.
If guardianship is needed only because the disabled person cannot process or manage a Social Security or SSI check, guardianship can often be avoided by having a representative payee appointed. The local SSA office can provide application forms and further information about the representative payee program for Social Security retirement and SSI payments.
§ 3.4Department of Veterans Affairs Fiduciary Program
Similar to the appointment of a representative payee to receive benefits on behalf of a retired or disabled person, the Department of Veterans Affairs Fiduciary Program allows the appointment of a person to handle the administration of a veteran’s pension benefits without the appointment of a guardian. See 38 U.S.C. § 5502; see also Department of Veterans Affairs, Fiduciary Program, www.benefits.va.gov/fiduciary. See chapter 5 in this manual for further discussion of veterans benefits and guardianships of veterans.
§ 3.5Payment of Employees Retirement System Funds to Parent of Minor
Texas Employees Retirement System (ERS) funds owed a minor may be paid directly to and managed by the beneficiary’s parent. Tex. Att’y Gen. Op. No. H-1214 (1978). The attorney general’s opinion relies on two provisions as support for this conclusion. First, a parent has authority to manage the estate of a minor child without court appointment of a guardian. Tex. Fam. Code § 151.001(a)(4). A parent may also receive, hold, and disburse funds for the minor’s benefit. Tex. Fam. Code § 151.001(a)(8). Thus, a parent may receive and manage a minor child’s ERS benefits without guardianship administration. Tex. Att’y Gen. Op. No. H-1214. If the sole property of a minor consists of a right to receive ERS funds, guardianship of the minor may be avoided, and these funds may be paid directly to the parent to be managed for the benefit of the minor.
§ 3.6Managing and Possessory Conservatorship for Minor
In suits affecting the parent-child relationship, defined by Tex. Fam. Code § 101.032(a), state district courts are empowered to appoint managing and possessory conservators for minor children. Tex. Fam. Code §§ 153.005–.006. The rights and duties of nonparent possessory conservators are prescribed by Tex. Fam. Code § 153.376. A nonparent managing conservator’s rights include the right to physical possession of the minor; the duty to care for, control, protect, and provide support and education for the minor; and the power to consent to medical treatment for, make decisions of legal significance concerning, and receive, hold, and disburse funds for the support of the minor. For cases pending on or filed after September 2019, the nonparent managing conservator has the right to apply for, renew, and maintain possession of the minor’s passport. Tex. Fam. Code § 153.371.
The statutory rights and duties of a managing conservator have been held to be equivalent to the rights, powers, and duties of guardians of the person. See In re Guardianship of Henson, 551 S.W.2d 136, 139 (Tex. App.—Corpus Christi–Edinburg 1977, writ ref’d n.r.e.). Although a detailed account of use of the preemptive appointment of a managing conservatorship in lieu of guardianship is beyond the scope of this manual, it should be considered if a parent is terminally ill and wishes to settle the conservatorship premortem. Tex. Fam. Code § 153.007 provides for agreed conservatorships. See also Tex. Fam. Code § 161.005 (termination of parental rights).
§ 3.7Temporary Authorization to Consent to Voluntary Inpatient Mental-Health Services for Child
This procedure, added by the Texas legislature in 2019, allows designated adult nonparent family members (grandparent, adult sibling, or adult uncle or aunt) with actual custody of a minor to seek a court order for temporary authorization to consent to voluntary inpatient mental-health services for that child. Tex. Fam. Code ch. 35A; Tex. Health & Safety Code § 572.001(a–1).
The petition is filed and heard in district court and must be accompanied by a sworn certificate of medical examination for mental illness prepared by a physician who has examined the child not earlier than the third day before the date the petition is filed. Tex. Fam. Code § 35A.003(7); Tex. Health & Safety Code § 572.001(a–1).
The certificate must contain the physician’s opinion, specifying the child is a person (1) with mental illness or who demonstrates symptoms of a serious emotional disorder and (2) who presents a risk of serious harm to himself or others if not immediately restrained or hospitalized. Tex. Fam. Code § 35A.003(7)(A), (7)(B).
The petition must also explain why the filer cannot get documented permission from a parent, conservator, or guardian of the child. Tex. Fam. Code § 35A.003(8).
After a hearing and notice as specified in the statute, the court may grant authority for the applicant to give consent for voluntary inpatient mental-health services. Tex. Fam. Code § 35A.005.
The order expires on the earlier of the date the applicant requests that the child be discharged, the date the physician determines the child no longer meets the required criteria, or the tenth day after the date the order is issued. However, if the petitioner obtains an order for temporary managing conservatorship before the tenth day after the date the order was issued, the order expires on the earlier of the date the petitioner requests the child be discharged or the date the physician determines the child no longer meets the required criteria. Tex. Fam. Code § 35A.005(d), (e).
§ 3.8Authorization Agreement for Nonparent Relative
A parent may authorize a grandparent, adult sibling, or adult aunt or uncle to have decision-making authority for a minor child in regard to health care, insurance coverage, school enrollment, school activities, driver’s education, employment, and application for public benefits. See Tex. Fam. Code ch. 34. This essentially authorizes the designee to do anything a guardian of the person could do. See form 3-1 in this chapter.
§ 3.9Durable Power of Attorney
A statutory durable power of attorney is commonly used as it is the form generally accepted by third parties. But Texas also recognizes powers of attorney other than those granted by the statutory form. To use it to avoid a guardianship, however, the power of attorney must be durable.
A “durable power of attorney” means a writing or other record that meets the requirements of Texas Estates Code section 751.0021(a) or is described by section 751.0021(b). The requirements include that the writing or record designates another person as agent and grants authority to that agent to act in the place of the principal, regardless of whether the term “power of attorney” is used, and is signed by an adult principal or in the adult principal’s conscious presence by another adult directed by the principal to sign the principal’s name on the instrument. The writing must contain the words “This power of attorney is not affected by subsequent disability or incapacity of the principal,” “This power of attorney becomes effective on the disability or incapacity of the principal,” or similar words indicating the agent’s authority notwithstanding the principal’s subsequent disability or incapacity. Tex. Est. Code §§ 751.002(4), 751.0021.
On the qualification of a court-appointed permanent guardian of the estate for a ward who is the principal who executed a power of attorney, the powers and authority granted to the agent named in the power of attorney are automatically revoked. Tex. Est. Code § 751.133(a). On the qualification of a temporary guardian of the estate for the principal, the powers and authority granted to the agent are automatically suspended for the duration of the guardianship. Tex. Est. Code § 751.133(b).
§ 3.10Statutory Durable Power of Attorney
In 1993, the Texas legislature originally created a statutory durable power of attorney under the Texas Probate Code. Now chapter 752 of the Texas Estates Code sets forth the form for a statutory durable power of attorney. See form 3-2 in this chapter. A person may use a statutory power of attorney to grant an attorney-in-fact or agent powers with respect to a person’s property and financial matters. A power of attorney in substantially the form found in chapter 752 is considered a statutory durable power of attorney. The validity of a power of attorney as meeting the requirements of a statutory durable power of attorney is not affected by the fact that one or more of the categories or optional powers listed in the form are not initialed or the form includes specific limitations on or additions to the attorney-in-fact or agent’s powers. Tex. Est. Code § 752.002. A person is not required to use the statutory form, but to be considered a statutory form, the form must be in substantially the form set forth in chapter 752. Sections 752.101 through 752.115 of the Estates Code set forth the powers that are given in the statutory power of attorney. Many banks and brokerage firms will accept only the form of power of attorney included in chapter 752 or one that looks substantially similar to it.
Over the years, several significant statutory amendments have been adopted, which have improved the powers and accountability of the agent. These include the following:
1.The power of attorney does not terminate unless the document provides a specific termination date or is revoked. Tex. Est. Code § 751.131.
2.A principal is bound by the agent’s acts as if the principal had performed the act. Tex. Est. Code § 751.051.
3.When a guardian is appointed, the agent can be made to account for all actions under the power of attorney no matter when the actions were taken. Tex. Est. Code § 751.104.
4.Any person who, in good faith, relies on the power of attorney without notice of the termination of an agent’s authority is protected. Tex. Est. Code § 751.134.
5.The agent may execute a certification to establish the existence of this good-faith reliance. This certification is permitted to state the principal’s specific disability or incapacity. Tex. Est. Code § 751.203.
6.The power of attorney must be recorded only if it covers real property. See Tex. Est. Code § 751.151.
7.Appointment of a spouse as agent is automatically revoked on divorce or annulment unless the power of attorney provides otherwise. Tex. Est. Code § 751.132.
8.Appointment of co-agents is recognized, and, unless otherwise indicated, each co-agent may exercise authority independently of the other. Tex. Est. Code § 751.021.
9.An agent is entitled to reimbursement of expenses and reasonable compensation unless the power of attorney provides otherwise. Tex. Est. Code § 751.024.
Many of the recent improvements, effective September 1, 2017, make the Texas Durable Power of Attorney laws more similar to the Uniform Durable Power of Attorney Act. Most importantly, third parties are required to accept a power of attorney unless they meet the exceptions allowed under section 751.206 of the Estates Code. Tex. Est. Code § 751.201.
Practice Pointer: Some banks and brokerage firms will accept only their power of attorney form. Until the new durable power of attorney laws referenced above have been tested, have your clients check with their banks and brokerage firms and, if this is the case, also have the clients execute their forms as well as the statutory durable power of attorney form.
§ 3.11Supported Decision-Making Agreements
Somewhat similar to a power of attorney, a supported decision-making agreement is an agreement regarding activities of daily living (“ADLs”) between (1) an adult with disabilities, but who is not incapacitated, and (2) a “supporter” who is willing to assist in—
1.understanding the options, responsibilities, and consequences of the life decisions, without actually making those decisions for the disabled adult and without impeding the adult’s self- determination;
2.obtaining the relevant information necessary to make decisions (health, financial, or educational—the adult may execute Health Insurance Portability and Accountability Act or similar releases to facilitate the information gathering);
3.understanding the information gathered; and
4.communicating those decisions to the appropriate persons.
“Life decisions” could include decisions regarding obtaining food and clothing and residence and cohabitation choices; the supports, services, and medical care to be received; financial management assistance; and workplace choices.
Such an agreement extends until terminated by either party or by the terms of the agreement. The agreement will also terminate if the Department of Family and Protective Services validates findings of abuse, neglect, or exploitation by the supporter against the adult or the supporter is found criminally liable for such actions. The qualification of a temporary or permanent guardian of the person or estate of the adult with a disability will also terminate the agreement. Tex. Est. Code § 1357.053(b)(3). See form 3-3 in this chapter for the statutory form of a supported decision-making agreement. See also Tex. Est. Code § 1357.053.
A permissive form is supplied in the statute. The agreement must be signed by both the disabled adult and the supporter in the presence of either two or more subscribing witnesses (above age fourteen) or a notary public. Tex. Est. Code § 1357.055.
The supporter owes to the adult with a disability fiduciary duties as listed in the form provided by section 1357.056(a), regardless of whether that form is used for the supported decision-making agreement. Tex. Est. Code § 1357.052(b). The relationship between an adult with a disability and the supporter with whom the adult enters into a supported decision-making agreement (1) is one of trust and confidence and (2) does not undermine the decision-making authority of the adult. Tex. Est. Code § 1357.052(c). The supporter’s fiduciary duties are (1) acting in good faith, (2) acting within the authority granted in the agreement, (3) acting loyally and without self-interest, and (4) avoiding conflicts of interest. Tex. Est. Code § 1357.056(a).
§ 3.12Medical Power of Attorney
A medical power of attorney allows an individual to designate an agent to consent to medical treatment. See Tex. Health & Safety Code § 166.151. This power of attorney can be either notarized or witnessed by two qualified witnesses. Tex. Health & Safety Code § 166.154. As of January 1, 2018, the disclosure statement previously required as a separate document is part of the statutory form. The statutory form is still required. Tex. Health & Safety Code § 166.164. See form 3-4 in this chapter for the statutory form as of January 1, 2018. The medical power can be revoked—
1.by oral or written notification by the principal to the agent or health-care provider “or by any other act evidencing a specific intent to revoke the power,” without regard to the principal’s capacity;
2.by the execution of a subsequent power of attorney; or
3.if the agent is a spouse and the marriage to the principal is dissolved, annulled, or declared void, unless the power provides otherwise.
Tex. Health & Safety Code § 166.155.
Texas is one of only five states that will not permit the use of nonstatutory medical powers of attorney. See discussion at see 3.16 below.
In 1999, the Texas legislature consolidated the statutory provisions for directives to physicians and medical powers of attorney into chapter 166 of the Texas Health and Safety Code. A directive to physicians allows one to designate, before the need arises, instructions on the use or withholding of life-sustaining procedures. The Code provides a specific form but does not mandate its use. Tex. Health & Safety Code § 166.033. See form 3-6 in this chapter. The form is entitled “Directive to Physicians and Family or Surrogates.” Some attorneys and clients find the form’s division of medical conditions into categories—irreversible and terminal—confusing. An irreversible condition is one wherein a person cannot make decisions for himself or take care of himself, that may be treated but not cured, and that is fatal without life-sustaining treatment. Examples of an irreversible condition are Alzheimer’s disease or a severe brain injury that will not improve. A terminal condition refers to one with a life expectancy of less than six months. Tex. Health & Safety Code § 166.033.
A person must not be incapacitated at the time the directive is executed. Tex. Health & Safety Code § 166.032. The directive must be signed in the presence of two witnesses or notarized. See Tex. Health & Safety Code §§ 166.032(b), (b–1), 166.036(a).
Under the statute, one witness must not be related to the declarant by blood or by marriage, not be entitled to a part of the declarant’s estate, not have a claim against the patient, not be the attending physician or the employee of the attending physician, not be involved in providing direct patient care, and not be an officer, director, partner, or business office employee of the health-care facility in which the patient is located. Tex. Health & Safety Code § 166.033.
If a patient has not executed a directive and is incompetent or incapable of communication, the attending physician and the patient’s legal guardian or an agent appointed under a medical power of attorney may make a decision on whether to use life-sustaining procedures on the patient. Tex. Health & Safety Code § 166.039(a). If there is no legal guardian or agent, the attending physician and one of the following persons in the following priority may decide to withhold or withdraw life-sustaining procedures: the patient’s spouse, reasonably available adult children, parents, or the patient’s nearest living relatives. Tex. Health & Safety Code § 166.039(b).
The directive need not be recorded to be effective, is effective on execution, and may be revoked at any time without regard to the declarant’s mental state or competency. Tex. Health & Safety Code § 166.042.
Any health-care provider who acts in compliance with a directive is not liable if the acts are done in good-faith reliance on the directive. Also, a provider who is unaware of the directive cannot be liable for acting contrary to it. Tex. Health & Safety Code § 166.045. Instructions in a directive supersede any conflicting instructions given by a guardian or agent under a durable power of attorney for health care if the directive is executed at a later time. Tex. Health & Safety Code § 166.008.
A surrogate decision maker, physician, or medical treatment provider who acts in good faith will not be subject to either criminal or civil liability for the acts. Tex. Health & Safety Code § 166.160.
§ 3.14Consent of Nonparent under Family Code
The Texas Family Code provides that when a parent is unavailable to consent to dental, medical, psychological, and surgical treatment of a child, a person authorized by statute may consent to such treatment. Tex. Fam. Code § 32.001(a). A parent may also delegate authority to consent to others not authorized by statute. See form 3-7 in this chapter.
§ 3.15Surrogate Decision Making
§ 3.15:1Incapacitated Individuals and Inmates
Incapacitated individuals in a hospital or nursing home, receiving services through a “home and community support services agency,” or who are adult inmates of a county or municipal jail may have nonemergency medical decisions made without the necessity of a guardianship. See Tex. Health & Safety Code §§ 313.001–.007.
“Incapacity” is defined as “lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision.” Tex. Health & Safety Code § 313.002(5).
Any medical treatment consented to under the surrogate decision-making statute must be based on knowledge of what the patient would desire, if known. Tex. Health & Safety Code § 313.004(c).
Decision-Maker Priority: Decision-making priority is given in the following order, to (1) the patient’s spouse; (2) an adult child of the patient, with the waiver and 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 before the patient became incapacitated; (6) the patient’s nearest living relative; or (7) a member of the clergy. Tex. Health & Safety Code § 313.004(a).
Surrogate decision making does not (1) replace the authority of a guardian or of an agent under a medical power of attorney, (2) authorize treatment decisions for a minor unless the disabilities of minority have been judicially removed, or (3) authorize patient transfers under Texas Health and Safety Code chapter 241. See Tex. Health & Safety Code § 313.003.
Limitations on Types of Consent: The surrogate decision maker cannot consent to (1) voluntary inpatient mental-health services, (2) electro-convulsive treatment, (3) the appointment of another surrogate decision maker, (4) emergency decisions, or (5) end-of-life decisions (extending or withdrawing life support). Tex. Health & Safety Code §§ 313.003(a)(1), 313.004(d). Additionally, if the patient is an adult inmate of a county or municipal jail, a surrogate decision maker may not consent to (1) psychotropic medication, (2) involuntary inpatient mental-health services, or (3) psychiatric services calculated to restore competency to stand trial. Tex. Health & Safety Code § 313.004(e).
Limitations on Period of Consent for Inmate: A surrogate decision maker for an adult inmate may consent to medical treatment on behalf of the inmate patient only for the earlier of 120 days from the day after the date the surrogate decision maker agrees to act or the date the inmate is released from jail. Following the period of consent, only the patient or the patient’s appointed guardian (of the person) may consent to medical treatment. See Tex. Health & Safety Code § 313.004(f). Presumably, surrogate decision making would be available if the patient then otherwise qualified under the surrogate decision-maker statute.
Withdrawal of Life Support: If there is no directive to physicians and there is no guardian, making a treatment decision that may include withholding or withdrawing life-sustaining treatment is to be made pursuant to Health and Safety Code section 166.039. The protocol for such a decision is, in descending order of availability—
1.the attending physician and the patient’s legal guardian or agent under a medical power of attorney;
2.the attending physician and either—
a.the patient’s spouse;
b.the patient’s reasonably available adult children;
c.the patient’s parents; or
d.the patient’s nearest living relative; or
3.the attending physician and another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health-care facility in which the person is a patient.
Tex. Health & Safety Code § 166.039(a), (b), (e).
Documenting Consent: The attending physician is required to—
1.describe the patient’s incapacity in the patient’s medical record;
2.describe the proposed medical treatment;
3.make a reasonably diligent effort to contact or cause to be contacted the persons eligible to serve as surrogate decision makers; and
4.document the efforts to contact those persons in detail in the patient’s medical record.
Tex. Health & Safety Code § 313.005(a), (b).
If a surrogate decision maker consents to medical treatment on behalf of the patient, the attending physician records the date and time of the consent and signs the patient’s medical record. The surrogate decision maker countersigns the medical record or signs an informed consent form. Tex. Health & Safety Code § 313.005(c).
The statute provides for the surrogate consent to be given other than in person, provided that the consent is documented in the patient’s medical record, signed by the staff member receiving the consent, and countersigned by the surrogate decision maker as soon as possible. Tex. Health & Safety Code § 313.005(d).
Costs of Treatment: The statute does not make the surrogate decision maker liable for the cost of treatment. The result is the same as if the patient had consented to the treatment. Tex. Health & Safety Code § 313.006.
Limitation on Liability: The surrogate decision maker, attending physician, hospital, nursing home, home and community support services agency, and their agents are not subject to criminal or civil liability or professional liability, provided all of the parties are acting in good faith and the medical treatment consented to does not constitute a failure to exercise due care. Tex. Health & Safety Code § 313.007.
Disputes regarding the right to act as a surrogate decision maker are to be resolved by courts with probate jurisdiction. Tex. Health & Safety Code § 313.004(b).
§ 3.15:2Persons with Intellectual Disabilities
Surrogate decision making for persons with an intellectual disability is a more specialized form of surrogate decision making that allows an individual surrogate decision maker, a surrogate consent committee, and an interdisciplinary team to interact to make major medical and dental decisions (including the administration of psychotropic medications and behavior interventions) and release medical records for persons who reside in an intermediate care facility for intellectually disabled persons. The statute also allows other nonmedical decisions to be made by the committee or surrogate decision maker. See Tex. Health & Safety Code ch. 597; 40 Tex. Admin. Code §§ 9.281–.295.
Note: House Bill 1481, passed in the 2011 legislature, is the Texas implementation of its federal counterpart Rosa’s Law (Pub. L. No. 111-256, 124 Stat. 2643–2645 (2010)), which directs the legislature and state agencies to replace, as appropriate, the term mental retardation with the term intellectual disability. See Acts 2011, 82d Leg., R.S., ch. 272 (H.B. 1481), eff. Sept. 1, 2011 (adding Tex. Gov’t Code ch. 392). Although H.B. 1481 took effect in September 2011, all of the relevant statutes may not yet have been updated to reflect this change. Practitioners should use care to track existing statutory language in order to be compliant with the current statutes. See section 1.61 in this manual for additional discussion on the use of “person first language.”
§ 3.16End-Stage Planning and Palliative Care—Statement of Intent
With or without legal assistance, a person may express his wishes and desires about treatment decisions as disability or death approaches. Statutes underlying the various advance directive documents include reference to the patient’s wishes or intent, if known, and Texas law requires that the patient’s wishes, if known, are to be followed. See, e.g., Tex. Health & Safety Code §§ 166.039, 166.152(e)(1), 313.004(c).
A careful statement of the person’s intent with regard to end-of-life treatment choices, surrogate decision making, and palliative care choices, even if not fully compliant as a medical power of attorney or directive to physicians, may still function as a clear statement of the patient’s intent. An excellent approach would be to execute the statutory medical power of attorney and directive to physicians and attach them to the statement of intent. By providing a clear outline of the patient’s wishes, the statement of intent may help to address potential uncertainties with regard to end-stage planning and palliative care that may not be addressed in other directives prescribed by statute. The statement of intent may provide useful guidance when another authorized directive does not cover a specific circumstance or is unclear regarding the patient’s wishes. Practitioners should use caution to ensure that other directives and advance planning documents authorized by the client are consistent with the client’s statement of intent.
A statement-of-intent document is included as form 3-8 in this chapter for illustrative and discussion purposes. It is similar to “Five Wishes,” a copyrighted end-stage planning document that combines a health-care power of attorney, a directive to physicians, and end-stage planning statements. (See www.fivewishes.org.) “Five Wishes” meets the legal requirements for end-stage planning documents in forty-two states but is widely used in all fifty states. However, because of statutory restrictions in Texas, “Five Wishes” cannot be used in Texas. See discussion at section 3.12 above. The included form is in keeping with the actions of forty-five other states that encourage the use of nonstatutory forms to show the intent of the individual concerned. The American Bar Association Commission on Law and Aging also offers a simple durable power of attorney for health care designed to meet the legal requirements in nearly all states. Texas, Indiana, New Hampshire, Ohio, and Wisconsin have earned the sobriquet “the Forbidding Five.” These five states are the only states whose “laws [are] so inflexible and cumbersome that the bare bones power will not work.” www.americanbar.org/groups/law_aging/resources/health_care_decision_making/power_atty_guide_and_form_2011/. Although there is no case law upholding the use of the included form, it is clear that under the Directive to Physicians Act, the Medical Power of Attorney Act, and the Consent to Medical Treatment Act the wishes of the principal-patient are to control. If an adult qualified patient has not executed or issued a directive to physicians and is incompetent or otherwise mentally or physically incapable of communication or if the patient does not have a legal guardian or an agent under a medical power of attorney, treatment decisions must be based on knowledge of what the patient would desire, if known. Tex. Health & Safety Code § 166.039(c). The agent under a medical power of attorney, after consultation with the attending physician and other health-care providers, shall make a health-care decision according to the agent’s knowledge of the principal’s wishes, including the principal’s religious and moral beliefs. Tex. Health & Safety Code § 166.152(e)(1). The Consent to Medical Treatment Act requires that any medical treatment consented to must be based on knowledge of what the patient would desire, if known. Tex. Health & Safety Code § 313.004(c).
The sample form provides a broad range of circumstances and issues that can be addressed in the statement of intent, but it is not exhaustive. The form should be adapted as necessary to accurately reflect the person’s wishes in specific circumstances, including the specification of certain time frames and percentages relating to medical treatment (for example, no CPR is to be performed unless it is done within seven minutes of cardiac arrest). Although completing a statement of intent does not require legal assistance, persons completing the form are encouraged to do so in consultation with an attorney and the client’s doctors. Any completed form must be based specifically on the person’s expressed intent.
Note: In the 2019 session of the Texas legislature, the State Bar of Texas Real Estate, Probate & Trust Law Section attempted to secure legislation to make the statutory form of medical power of attorney optional so people could use other forms, such as the “Five Wishes” document, the ABA’s simple form, or some other form as a stand-alone document. The proposed legislation met with significant opposition from the Texas Medical Association and the Texas Hospital Association. It did not pass into law. William D. Pargaman, Is There Meat in Those Beans? The 2019 Texas Estate and Trust Legislative Update, in State Bar of Tex. Prof. Dev. Program, Legislative Update 2019: Estate and Trust Law (2019).
§ 3.17Do-Not-Resuscitate Orders
§ 3.17:1Out-of-Hospital Do-Not-Resuscitate Order
A person who is terminally ill or the legally authorized representative for such a person may direct that health-care professionals operating in an out-of-hospital situation not initiate or continue certain life-sustaining procedures. Tex. Health & Safety Code §§ 166.081–.102. Only certain designated life-sustaining procedures may be the subject of the order. Tex. Health & Safety Code § 166.081(6)(A). This directive must be executed on a form specified by the Texas Board of Health, and, among other requirements, it must include—
1.a title that readily identifies the document as an out-of-hospital do-not-resuscitate (DNR) order;
2.a statement that the directive was prepared and signed by the person’s attending physician; and
3.places for the names and signatures of two qualified witnesses or the notary public’s acknowledgment and for the name and signature of the attending physician.
Tex. Health & Safety Code § 166.083.
The directive is effective on execution and need not be recorded, and there is no advantage to the client in creating a public record. Tex. Health & Safety Code § 166.082(g). Any health-care provider who acts in compliance with and in good-faith reliance on such an order cannot be subjected to criminal or civil liability. In addition, if the health-care provider is not aware of the order, or if the DNR identification device is not present, there is no liability for acting contrary to the order. Tex. Health & Safety Code §§ 166.094–.096.
§ 3.17:2In-Hospital Do-Not-Resuscitate Order
An in-hospital do-not-resuscitate order authorized by Texas Health and Safety Code title 2, subtitle H, subchapter E, requires a health-care professional not to attempt cardiopulmonary resuscitation on a patient whose circulatory or respiratory function has ceased. The DNR order must be issued by the patient’s attending physician, based on a written or oral expression of intent of a competent patient or pursuant to an advanced directive or statement of intent from an agent under a medical power of attorney or a guardian. Tex. Health & Safety Code §§ 166.201, 166.203(a).
If the health-care provider does not wish to honor the expression of intent and the expression of intent is not effectively withdrawn, the facility, after informing the patient, guardian, relatives of the patient, or agent under a medical power of attorney of “the benefits and burdens of cardiopulmonary resuscitation,” may seek to transfer the patient to another doctor or facility. Tex. Health & Safety Code §§ 166.206.
The statute is incredibly complicated; while changes in the law went into effect April 1, 2018, no final rules implementing the procedure have been adopted as of the publication date of the latest supplement of this manual.
§ 3.18Interventional Alternatives
No consent for treatment is required for a minor who is suffering from what reasonably appears to be a life-threatening injury or illness and whose parent, managing or possessory conservator, or guardian is not present. Tex. Health & Safety Code § 773.008(3). A similar provision applies to unconscious adults. Tex. Health & Safety Code § 773.008(1).
§ 3.18:2Emergency Order for Protective Services
A person who lacks the capacity to consent to medical services and who is in a situation posing an immediate threat to his life or physical safety may, upon (1) the filing of a verified petition, (2) the appointment of an attorney ad litem, and (3) a finding of reasonable cause at a hearing for that purpose, be removed by Adult Protective Services. Tex. Hum. Res. Code § 48.208. If the court renders an order under certain circumstances in which a physician was unavailable to issue a medical report, the court shall order that the elderly person or person with a disability be examined by a physician not later than seventy-two hours after the time the provision for protective services begins. Tex. Hum. Res. Code § 48.208(d–1). Unless an order terminates pursuant to Tex. Hum. Res. Code § 48.208(e–1), the removal may last no longer than ten days but may be extended by the court for up to thirty days. The initial thirty-day extension is commonly referred to as the “first extension.” The court may grant a second extension for not more than thirty days. The second extension can be a very valuable tool for avoiding guardianship as it allows the family or caregivers additional time to make arrangements to protect the elderly person or person with a disability. However, an application for temporary and permanent guardianship usually follows. This order should not be confused with a domestic violence protective order issuable under chapter 5 of the Texas Code of Criminal Procedure.
§ 3.18:3Court-Ordered Mental-Health Services
In the case of a chronically mentally ill person, a temporary involuntary commitment may be preferable to a guardianship. A guardianship, with its attendant removal of functional rights and the requirement that it usually be in place for at least a year, may be too restrictive once the patient or ward has been stabilized with medication. Commitment provisions for persons who are chemically dependent, persons with intellectual disabilities, and persons with certain communicable diseases are also available in limited circumstances. See Tex. Health & Safety Code chs. 81, 462, 571, 574. For further discussion of mental-health services, see chapter 16 in this manual.
§ 3.18:4Driving Issues—License Renewal in Person over Age Seventy-Nine and Retest Request
Texas drivers aged seventy-nine or older can no longer renew a driver’s license by mail or electronic means; they must renew the license in person at an authorized license renewal station. Tex. Transp. Code § 521.274(b)(3). In addition, drivers aged eighty-five and older will now have to renew every two years, rather than every six years. Tex. Transp. Code § 521.2711.
A potential ward who refuses to stop driving may be reported to the Texas Department of Transportation by a physician, family member, or peace officer if the person’s driving capability is impaired. Information in the license renewal application or on the driving record may prompt a reexamination. The reexamination involves an interview and may also involve a vision test, a written test, or a driving test.
It is possible for the applicant in a guardianship or the ad litem to request the court to make a request to the Texas Department of Public Safety for the proposed ward to be retested under DPS regulations to determine the proposed ward’s suitability to continue to drive. See form 3-9 in this chapter.
§ 3.18:5Mental Illness Diversion Programs (Criminal Courts)
In a mental illness diversion program, typically implemented on the initiative of an individual judge, individuals with a documented mental-health problem who have committed crimes are treated as patients, not criminals. These programs vary by county as they are not statutorily mandated.
In these programs, individuals are placed on a strict, supervised probation with regular court check-in dates to document and receive progress updates. Psychiatrists and other professionals develop a mental-health treatment program, customized to meet the specific needs of the participants. Following completion of the program, the charges are dismissed and may be eligible for expunction.
§ 3.18:6Release on Bail for Court-Ordered Outpatient Mental-Health Services
Persons accused of nonviolent offenses may be released on bail and transferred for court-ordered outpatient mental-health services, with the potential for dismissal of the charges upon successful completion of the outpatient program. Tex. Code Crim. Proc. art. 16.22.
§ 3.18:7Intellectually Disabled Individuals—Release in Lieu of Arrest
A resident of a group home or intermediate care facility for persons with intellectual or developmental disabilities who is arrested by a peace officer may be released at his residence (the facility) if the officer believes confinement in a correctional facility is unnecessary to protect the person and other persons who reside at the residence and after reasonable efforts to consult with the staff of the facility. Tex. Code Crim. Proc. art. 14.035.
§ 3.19School Admission Procedures
A school district may adopt guidelines to allow admission of nonresident children to attend school in that school district without the need for a guardianship. Tex. Educ. Code § 25.001(d).
Also, a school district may adopt guidelines to allow admission of nonresident children to school if a grandparent of the child resides in the school district and the grandparent provides “a substantial amount” of after-school care for the child. Tex. Educ. Code § 25.001(b)(9).
§ 3.20Designation of Guardian in Event of Later Incapacity or Need for Guardian
A designation of guardian before a need arises may be executed before incapacity. Tex. Est. Code § 1104.202. A statutory form is provided, but the statutory form is not mandatory. This form should be filed with the application to appoint a guardian. In addition, this instrument may be used to designate those not desired to be appointed guardian. As of September 1, 2017, the form needs only to be notarized and not witnessed unless it is used to disqualify someone from serving as guardian. Tex. Est. Code §§ 1104.203, 1104.204. See form 3-10 in this chapter; but see section 9.5 in this manual and Tex. Est. Code § 1203.103. The designation may be revoked in the same manner as a will under section 253.002 of the Texas Estates Code. The designation need not be recorded to be effective, and there is no advantage to the client in doing so.
§ 3.21Declaration of Appointment of Guardian for Children in Event of Death
The last surviving parent may direct the appointment of a guardian of the children. Tex. Est. Code §§ 1104.053(a), 1104.103(a), 1104.152. A statutory form is provided, but any form that clearly indicates the declarant’s intention may be used; see form 3-11 in this chapter. The declaration must be attested to by two credible witnesses fourteen years of age or older and must have attached a self-proving affidavit signed by the declarant and witnesses. The declaration is effective on execution and may be revoked in the same manner as a will under section 253.002 of the Texas Estates Code. The declaration may be filed at any time after an application to appoint a guardian has been filed and does not need to be recorded to be effective. See Tex. Est. Code § 1104.156.
§ 3.22Declaration for Mental-Health Treatment
A declaration may be made for mental-health treatment in the event of future incapacity. A statutory form is provided that makes these treatment designations effective. Tex. Civ. Prac. & Rem. Code § 137.011. See form 3-12 in this chapter.
Significant factors that affect this declaration include the following:
1.The declarant must not be incapacitated at the time the declaration is made.
2.A preference or instruction may consist of either a consent to or refusal of any treatment.
3.The declaration is effective on execution and expires three years after the date of execution or on revocation. But if the person is incapacitated on the expiration date, the declaration remains effective until the person is no longer incapacitated.
4.The declaration must be signed in the presence of two witnesses or must be signed by the principal and acknowledged before a notary public. Texas Civil Practice and Remedies Code section 137.003(b) lists persons who, because of their relationship to the declarant, may not serve as witnesses.
5.Any health-care provider who acts in compliance with the declaration is not subject to criminal or civil liability if the acts are done in good-faith reliance on the declaration. In addition, if the provider was not provided with a copy of the declaration and was unable to determine whether a declaration existed, there is no liability for acting contrary to it.
6.The declaration may be disregarded only if the person is under an involuntary commitment or if an emergency exists and the patient’s instructions have not been effective in avoiding the emergency.
7.The instructions in the declaration supersede any conflicting instructions given by a guardian or agent under a durable power of attorney for health care.
See Tex. Civ. Prac. & Rem. Code §§ 137.001–.011.
§ 3.23Payment of Claims without Guardianship
Any debtor may discharge debts to a minor, an incapacitated person, or a former ward by paying the owed funds to a county clerk. Tex. Est. Code §§ 1355.001, 1355.002. This provision eliminates the need for a guardianship proceeding. The right to receive such payment must be liquidated and uncontested in any pending lawsuit, and each payment must not exceed $100,000. Tex. Est. Code § 1355.001(a).
Payment to a resident minor or incapacitated person, referred to as the “creditor” in the statute, should be made in the county in which the creditor resides. Tex. Est. Code § 1355.001(c). Payment to a nonresident should be made in any county in which the nonresident creditor owns real property. If the nonresident creditor is not known to own real property in Texas, payment may be made in the county in which the debtor resides. Tex. Est. Code § 1355.002(c)(2). See form 3-13 in this chapter.
The receipt issued by the county clerk binds the creditor as of the date and to the extent of the payment. The clerk must immediately notify the court and the creditor of the payment. As soon as the money has been deposited, the clerk will invest it in accordance with court order for the account of the minor or the incapacitated person. Tex. Est. Code §§ 1355.001(d), (e), 1355.051. Not later than March 1 of each calendar year, the clerk will report to the court on the status of the investment. Tex. Est. Code § 1355.052.
The creditor’s unestranged spouse, father, or mother may apply to the court to withdraw money for the use and benefit of the creditor. Tex. Est. Code §§ 1355.102, 1355.103. See forms 3-14 and 3-15. If there is no spouse and no parent alive and residing in Texas, the resident person with actual custody of the creditor may apply to withdraw the funds. The person making withdrawal must give a bond in double the amount of money on deposit, conditioned on use of the money as directed by the court for the benefit of the creditor. Tex. Est. Code §§ 1355.102(a)(3), 1355.103(b). Note that there is no provision for withdrawal by the guardian of a nonresident.
The custodian must file a sworn accounting with the county clerk when the money has been expended in accordance with the orders of the court. The court’s approval of this accounting releases the custodian and the sureties on the custodian’s bond from liability. Tex. Est. Code § 1355.104.
If the money is not withdrawn by a custodian, the creditor on whose behalf it was deposited may withdraw it when the creditor’s disability is removed. If the person entitled to the money dies before it is withdrawn, that person’s personal representatives or heirs may withdraw it. In either case, the withdrawal may be without bond, simply by obtaining a court order directing the clerk to deliver the money to the person or persons entitled to it. Tex. Est. Code § 1355.105.
Payment of claims of less than $10,000 to charitable institutions for the benefit of incapacitated inmates is also allowed. Tex. Est. Code §§ 1355.151, 1355.152.
§ 3.24:1Management of Funds Recovered for Minor or Incapacitated Person in Lawsuit Brought by Next Friend or Guardian Ad Litem
A next friend may represent and sue on behalf of minors and incapacitated persons who have no legal guardian. Tex. R. Civ. P. 44. A guardian ad litem may also represent the best interests of a minor. See Tex. Prop. Code § 142.001.
When a judgment is recovered in a lawsuit brought by a next friend, the court may enter an order authorizing the next friend or another person to take charge of the property recovered and administer it for the minor or incapacitated person. Tex. Prop. Code § 142.002. The person authorized to take charge of the property must execute a bond conditioned on his using it to benefit the owner under direction of the court and delivering it and its increase to the person entitled to receive it when so ordered by the court. Tex. Prop. Code § 142.002(b)(3). If the bond is executed by a solvent Texas surety company, it must be in an amount equal to the value of the money and property recovered; a bond not issued by a surety company must be in an amount double the amount of the recovery. Tex. Prop. Code § 142.002(b)(1).
A next friend is authorized to invest the recovered funds in interest-bearing time deposits in financial institutions insured by the Federal Deposit Insurance Corporation. Tex. Prop. Code § 142.004(a)(1)(B). On court order, the clerk of the court may invest the funds appropriately. Tex. Prop. Code § 142.004(a)(2). If the funds are deposited in a manner that prevents withdrawal from the financial institution without a court order, no bond will be required of the next friend with respect to the funds until they are actually withdrawn. Tex. Prop. Code § 142.004(b). Interest on such an account will be paid in the same manner as on accounts governed by chapter 117 of the Texas Local Government Code. Tex. Prop. Code § 142.004(d). On withdrawal of the funds the court may order them either transferred to a beneficiary who has recovered capacity or managed under different authority. Tex. Prop. Code § 142.004(c). See sections 3.25:3 and 3.25:4 below for a discussion of trusts created under chapter 142 of the Texas Property Code.
Practice Pointer: Attorneys proceeding in litigation representing a next friend should be aware that their contingent fee agreements are subject to attack if the next friend is not the guardian, whether court-appointed or natural. Massey v. Galvan, 822 S.W.2d 309 (Tex. App.—Houston [14th Dist.] 1992, writ denied).
In Stern v. Wonzer, 846 S.W.2d 939, 947 (Tex. App.—Houston [1st Dist.] 1993, no writ), the contingent fee agreement was limited to one-third, including expenses, on the finding that next friends were subject to the same restrictions as guardians.
Practice Pointer: A dilemma may arise when a personal injury case settles and no consideration is given to the allocation of the award between the survival and wrongful death causes of action. This can lead to complicated tax issues, as well as potential problems with creditors who have had their claims approved in the probate case and are waiting for the estate to receive its share of the survival cause of action. See Texas Health Insurance Risk Pool v. Sigmundik, 315 S.W.3d 12 (Tex. 2010); Elliott v. Hollingshead, 327 S.W.3d 824 (Tex. App.—Eastland 2010, no pet.).
The Texas Achieving a Better Life Experience (ABLE) Program allows eligible Texas residents with disabilities to save funds in an ABLE account without jeopardizing their eligibility for federally funded means-tested benefits, such as Supplemental Security Income and Medicaid. Tex. Educ. Code § 54.901. An individual may save up to $15,000 per year to be used for disability-related expenses that assist the beneficiary in increasing or maintaining his health, independence, or quality of life. Tex. Educ. Code § 54.901; see www.texasable.org.
In addition to a parent, custodian, or other fiduciary, a guardian may now exercise signature authority over such an account. Tex. Educ. Code § 54.910(b).
Guardianship of an incapacitated person may sometimes be avoided through effective use of an inter vivos or testamentary trust.
§ 3.25:2Inter Vivos Revocable Trust for Grantor
An inter vivos (or living) revocable trust may be created to plan for an individual’s own needs in the event of later incapacity. Placing assets in trust provides a flexible method of handling financial affairs in case of later disability and may avoid the need for a future guardianship. A revocable trust may also be created by an attorney-in-fact when the power of attorney grants the agent the power to do so. Tex. Est. Code § 752.052. For general information on trusts, see Tex. Prop. Code ch. 112.
Often the individual will serve as initial trustee of an inter vivos trust that he establishes as grantor and will name a successor trustee to take charge if the grantor becomes incapacitated. Alternatively, the trust agreement may provide that the grantor initially act as advisor to the trustee, who is bound to follow the grantor’s instructions in managing the trust property as long as the grantor remains capacitated. The trust instrument may set the terms for determining incapacity, usually by a letter or certificate from the grantor’s attending physician.
A revocable trust offers no tax advantages to the grantor. Income from the trust is taxed to the grantor because it passes to him during his lifetime; at his death, the trust property will be taxed for federal estate tax purposes as part of his gross estate.
If an inter vivos trust is coupled with a durable power of attorney, the trust may be minimally funded when created. The durable power of attorney should give the agent power to transfer specified additional assets to the trust if the grantor becomes incapacitated. This arrangement avoids unnecessary trust management and fees and leaves the grantor’s assets free until the need for trust administration actually arises. The grantor thus retains both legal and equitable title to his assets as long as he has capacity to manage them and yet is assured that his affairs will be properly managed without the need for a guardian if he later becomes incapacitated.
The trust agreement governing disbursement of income and principal should be drafted to meet both present and future needs of the grantor. A common trust provision is that, before disability, the trustee will pay over to the grantor what the grantor requests. Should disability occur, the trustee will pay over for the benefit of the grantor any income and principal necessary to support and maintain the grantor. The trust agreement may further provide for termination of the trust at the grantor’s death and for delivery of the trust assets to the executor or administrator of the grantor’s estate.
§ 3.25:3Texas Property Code Section 142 Trusts
On application, a court with jurisdiction over a suit involving a beneficiary may establish a trust for the beneficiary for the management of funds accruing under the judgment. See form 3-16 in this chapter. The court must find that the establishment of a trust would best serve the interests of the beneficiary. The decree shall direct the clerk to deliver the funds owed to the beneficiary under the judgment to a financial institution as trustee. If the value of the principal is $50,000 or less, however, a person other than a financial institution may be appointed to serve as trustee if the court finds that it is in the beneficiary’s best interests. If the value of the principal is greater than $50,000, a person other than a financial institution may be appointed to serve as trustee only if no financial institution is willing to serve and the court finds that it is in the best interests of the beneficiary. Tex. Prop. Code § 142.005. See forms 3-17, 3-18, and 3-19.
On the petition of a parent, next friend, guardian, conservator, or guardian or attorney ad litem of the beneficiary, the court may appoint a guardian ad litem to investigate whether the trustee should be removed for failing or refusing to make necessary distributions as required under the terms of the trust. The petitioner will be reimbursed for reasonable attorney’s fees from the trust, up to $1,000. Tex. Prop. Code § 142.005(k), (l).
A trust under Texas Estates Code chapter 1301 may also be created as an alternative to a section 142 trust or as a less restrictive alternative to guardianship. A statutory probate court may, with the agreement of both parties, transfer a section 142 trust to a guardianship and modify the section 142 trust to a chapter 1301 trust in order to provide increased oversight of the trust for the protection of the beneficiary. Chapter 1301 trusts are discussed in chapter 11 of this manual.
§ 3.25:4Mandatory Provisions for Texas Property Code Section 142 Trusts
Statutory requirements for a section 142 trust are as follows:
1.The beneficiary must be either (a) a minor or incapacitated person who has no legal guardian and is represented by a next friend or an appointed guardian ad litem or (b) a person with a physical disability. Tex. Prop. Code §§ 142.001(a), 142.005(o). If there is a legal guardian, the appropriate trust is one established under Texas Estates Code chapter 1301. See chapter 11 in this manual for further discussion of chapter 1301 trusts.
2.The trustee must be a financial institution, except as provided by Tex. Prop. Code § 142.005(m), (n). Tex. Prop. Code § 142.005(a).
3.A trustee that is a financial institution shall serve without bond. Tex. Prop. Code § 142.005(b)(5).
4.The beneficiary must be the sole beneficiary of the trust. Tex. Prop. Code § 142.005(b)(1).
5.The trust must provide for distributions of principal, income, or both as the trustee determines reasonably necessary for the health, education, support, or maintenance of the benefi-ciary. Medicine or treatments approved by a licensed physician may be conclusively presumed to be appropriate for the health of the beneficiary. Any income not distributed shall be added to the principal of the trust. Tex. Prop. Code § 142.005(b)(2), (b)(3). See form 3-18 in this chapter.
Practice Pointer: If distributions are made using this standard, the beneficiary will not qualify for state Medicaid assistance. A departure from this standard distribution is permitted to incorporate “special needs” language necessary to maintain government benefits:
Notwithstanding any other provision of this chapter, if the court finds that it would be in the best interests of the beneficiary for whom a trust is established under this section, the court may omit or modify any terms required by Subsection (b) if the court determines that the omission or modification is necessary or appropriate to allow the beneficiary to be eligible to receive public benefits or assistance under a state or federal program. This section does not require a distribution from a trust if the distribution is discretionary under the terms of the trust.
Tex. Prop. Code § 142.005(g). See section 3.25:5 below.
6.The trust must provide that the trustee receive reasonable compensation on application to and approval of the court. Tex. Prop. Code § 142.005(b)(6).
7.The following statutory language must be included on the first page of the trust instrument: “Notice: The beneficiary and certain persons interested in the welfare of the beneficiary may have remedies under section 114.008 or 142.005, Property Code.” See Tex. Prop. Code § 142.005(b)(7).
8.If the beneficiary is a minor who is not considered disabled, the trust terminates on the beneficiary’s death, when the beneficiary reaches the age stated in the trust, or when he reaches the age of twenty-five, whichever occurs first. If the court finds that a minor beneficiary is disabled, the trust terminates on the death of the beneficiary. If the beneficiary is incapacitated, the trust terminates when the beneficiary regains capacity or on the death of the beneficiary. Tex. Prop. Code § 142.005(b)(4), (b)(4–a), (b)(4–b).
9.On termination, the remaining trust estate is distributed to the beneficiary or the representative of the estate of the deceased beneficiary. Tex. Prop. Code § 142.005(e).
Practice Pointer: If the trust is to qualify as a special needs trust under 42 U.S.C. § 1396p(d)(4)(A), it must provide for repayment to the state for Medicaid benefits paid on behalf of the beneficiary before distribution of assets to the beneficiary or his representative. Therefore the attorney should take care to provide for repayment as mandated by 42 U.S.C. § 1396p(d)(4)(A) and as permitted by Tex. Prop. Code § 142.005(g). See section 3.25:5 below.
§ 3.25:5Self-Settled Special Needs Trusts under 42 U.S.C. § 1396p(d)(4)(A)
A special needs trust qualifying under 42 U.S.C. § 1396p(d)(4)(A) may be created by applying to the court in which the lawsuit is pending for an order creating a trust under Texas Property Code section 142 or under chapter 1301 of the Texas Estates Code.
A severely injured person often will require Medicaid assistance to pay for continuing medical care. Proceeds from the settlement of a lawsuit may disqualify an individual from Medicaid eligibility because individuals whose resources exceed certain limits cannot qualify for Medicaid. Certain assets, however, will not count as resources in determining Medicaid eligibility. For example, assets placed in a trust for “supplemental needs” of an individual, including periodic payments from a structured settlement, should not affect Medicaid eligibility.
Purpose: The purpose of a special needs trust is to provide for the beneficiary’s supplemental needs only; it may not be used for the beneficiary’s basic support, including basic food and shelter.
Requirements: A self-settled special needs trust may be established by a parent, a grandparent, a legal guardian, or a court for an individual who is less than age sixty-five when the trust is created and who is disabled. The trust must provide for repayment to the state for Medicaid benefits paid on behalf of the beneficiary on termination of the trust. 42 U.S.C. § 1396p(d)(4)(A).
For an individual to be considered “disabled,” he must be “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months”; or, in the case of a child under the age of eighteen, if the child suffers from any medically determinable physical or mental impairment of comparable severity as long as that child does not engage in substantial gainful activity. 42 U.S.C. § 1382c(a)(3)(A), (a)(3)(C).
This definition differs substantially from those of “incapacitated person” found in the Property Code and the Estates Code. Section 142.007 of the Property Code provides that “ ‘incapacitated person’ means a person who is impaired because of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or any other cause except status as a minor to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.” See Tex. Prop. Code § 142.007. The Estates Code defines an “incapacitated person” as—
1.a minor;
2.an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; or
3.a person who must have a guardian appointed to receive funds due the person from any governmental source.
§ 3.25:6Chapter 1301 Guardianship Management Trusts
Chapter 1301 guardianship management trusts are discussed in chapter 11 of this manual.
§ 3.25:7Pooled Special Needs Trust Subaccounts
As an alternative to a chapter 1301 guardianship management trust, the court may order that a subaccount of a pooled trust be established for the benefit of (1) a minor or other incapacitated person, (2) an alleged incapacitated person, or (3) a disabled person who is not an incapacitated person. See Tex. Est. Code §§ 1302.001–.007. This type of trust meets the requirements of 42 U.S.C. § 1396p(d)(4)(C), which exempts it from the applicability of 42 U.S.C. § 1396p(d) in determining the eligibility of a person who is disabled for medical assistance.
Funds that are otherwise appropriate for a guardianship management trust may then be transferred to the subaccount. Such a transfer will preserve qualification for state medical assistance (Medicaid). This allows the funds to continue to be professionally managed even though the value of the trust is below the threshold of most bank trust departments.
In addition, assets in a guardianship management trust pursuant to Texas Estates Code chapter 1301 may also be transferred to a subaccount of a master pooled trust upon a determination by the court that it is in the best interests of the beneficiary of the trust. Tex. Est. Code § 1301.202(a).
The transfer of the trust assets to the pooled trust subaccount is treated as a continuation of the management trust and thus preserves the beneficiary’s eligibility for medical assistance under chapter 32 of the Texas Human Resources Code. Tex. Est. Code § 1301.202(b).
The management trust may not be terminated until all such assets have effectively been transferred to the subaccount of the pooled trust. Tex. Est. Code § 1301.202(c).
The trustee or manager of the pooled trust may be required by the court to file an annual report with the court clerk. Tex. Est. Code § 1302.006(b). However, the report is not a guardianship-style accounting, and approval by the court is not mandated. Additionally, the trustee may assess its standard fees against the subaccount, rather than have its fees measured by the standard of guardianships. Tex. Est. Code § 1302.003(a).
The subaccount terminates on the earliest of the date of (1) the beneficiary’s eighteenth birthday, if the beneficiary is not disabled on that date and was a minor at the time the subaccount was established; (2) the beneficiary’s death; or (3) upon an order of the court terminating the subaccount. Tex. Est. Code § 1302.005(1). On termination, any assets remaining in the subaccount after reimbursement of any state Medicaid claims are payable to the beneficiary, if living and not incapacitated; otherwise the remaining assets are payable to the beneficiary’s guardian, if the beneficiary is living and is incapacitated, or to the personal representative of the beneficiary’s estate, if the beneficiary is deceased. Tex. Est. Code § 1302.005(2).
See forms 3-20 and 3-21 in this chapter.
§ 3.25:8Testamentary Trust for Another
A testamentary trust may be created in a will for the benefit of a mentally or physically disabled family member. State statutes allow trustees great discretion in making disbursements from the trust for the benefit of the disabled person. For general information concerning trusts, see Tex. Prop. Code ch. 112.
Many attorneys recommend that the trust be administered jointly by a corporate trustee, such as a bank, and an individual, such as a close family member who is sensitive to the needs of the disabled person. A carefully drafted will with testamentary trust provisions may avoid the need to establish a guardianship to administer that portion of the decedent’s estate of which the disabled person is the beneficiary. Because many disabled persons receive government benefits, it may be necessary to carefully structure the testamentary trust to ensure that the disabled person will remain eligible for those benefits. Such trusts generally are referred to as “special needs” or “supplemental needs” trusts. See sections 3.25:5 and 3.25:7 above.
Practice Pointer: In certain situations, an existing testamentary trust may be judicially reformed to allow it to qualify as a “special needs” or “supplemental needs” trust or otherwise become a viable alternative to a guardianship.
§ 3.25:9Trusts for Intellectually Disabled Persons
Certain trusts containing not more than $250,000 for the benefit of individuals in certain residential-care facilities may be established for intellectually disabled persons without disqualifying them from receiving state benefits and without the need for a guardianship. If a disabled person who is intellectually disabled is in a residential-care facility operated by the Texas Department of Aging and Disability Services or a state agency, governmental unit, or unit of local government and is the beneficiary of a trust, up to $250,000 of the corpus and income is not considered to be the property of the resident or his estate and is not liable for the resident’s support, maintenance, or treatment in the residential-care facility, regardless of the resident’s age. Tex. Health & Safety Code § 593.081. The trust must be created by written instrument, a copy of which must be provided to the Department of Aging and Disability Services. Tex. Health & Safety Code § 593.081(b). The department may request a current financial statement showing the value of the trust estate. Tex. Health & Safety Code § 593.081(c). If the trustee does not provide a financial statement, the department may petition a district court to order the trustee to provide a current financial statement. Tex. Health & Safety Code § 593.081(d). Failure of a trustee to comply with the court’s order is punishable by contempt. Tex. Health & Safety Code § 593.081(e). Guardianships established under the Texas Estates Code, trusts established under chapter 142 of the Texas Property Code, funds in a patient’s trust fund account in a residential-care facility, child support, an administration of a decedent’s estate, and funds held in the registry of the court are not considered trusts and are not entitled to the exemption. Tex. Health & Safety Code § 593.081(f).
§ 3.26Management of Community Property by Spouse
When a husband or wife is judicially declared to be incapacitated, the other spouse is given full power to manage the entire community estate of the couple without any court intervention. Tex. Est. Code § 1353.002(a). The spouse who is not incapacitated is presumed qualified to serve as the community administrator. Tex. Est. Code § 1353.002(b). If the incapacitated spouse owns separate property, it will be necessary to appoint a guardian of the estate to administer the separate property. Tex. Est. Code § 1353.003(a). Typically, the capacitated spouse applies to be named guardian of the person and recognized as community administrator.
On good cause shown or by motion of the court, the community administrator may be required to file an inventory and appraisement as well as an annual accounting. Tex. Est. Code §§ 1353.051–.052.
A community administrator may be removed after citation, notice, and hearing for the grounds specified in Texas Estates Code section 1353.101. See Tex. Est. Code § 1353.102.
Pursuant to Code section 1353.103, if the incapacitated spouse is restored, the authority of the community administrator ceases. Provisions for restoration are found in chapter 1202. See Tex. Est. Code ch. 1202, § 1353.103. See chapter 9 in this manual for discussion of restoration.
The rights of creditors and the duties and obligations of support are not affected by the administration of community property under this section, nor is the community property partitioned. Tex. Est. Code § 1353.001.
If a lawsuit or divorce proceeding is filed against the incapacitated spouse, the community administrator is required to inform the court in writing. Tex. Est. Code § 1353.053.
§ 3.27Order of No Administration
In a situation where title to estate assets needs to be transferred to an incapacitated surviving spouse, incapacitated adult children, or minor children and the value of the assets does not exceed the amount to which the spouse and children would otherwise be entitled to as a family allowance, an application for order of no administration may be employed if there is otherwise no necessity for administration. Tex. Est. Code § 451.001. The procedure incorporates elements of a small estate affidavit and an application for a family allowance. The court may dispense with notice or may prescribe the quality and quantity of notice required. Tex. Est. Code § 451.002.
The court’s order reads like the facilitation of payment language in a muniment of title proceeding and acts as authority to effect the transfer of the property involved. Tex. Est. Code § 451.003. Such an order may be revoked within one year if other information comes to light showing a necessity for administration. Tex. Est. Code § 451.004. See forms 3-22 and 3-23 in this chapter.
§ 3.28Transfer under Texas Uniform Transfers to Minors Act
A guardianship may be avoided through the use of the Texas Uniform Transfers to Minors Act, commonly referred to as TUTMA. Tex. Prop. Code ch. 141. A minor may receive property through inter vivos or testamentary gifts, or exercises of powers of appointment may be made to a minor. Tex. Prop. Code §§ 141.005–.008. The donor may designate a custodian to receive property on behalf of a minor. Tex. Prop. Code § 141.006. The Code specifies the required manner of making each type of gift. Tex. Prop. Code § 141.010(a). See form 3-24 in this chapter.
For example, a gift of a registered security may be made simply by registering it in the name of an adult or trust company as custodian for the minor under the Act or by delivering it. Tex. Prop. Code § 141.010(a)(1)(A). Similarly, gifts of money may be made by delivering the money to a broker or bank for credit to an account in the name of an adult or trust company custodian for the minor under the Act. Tex. Prop. Code § 141.010(a)(2). Gifts of life or endowment insurance policies or annuity contracts may be made either by registering the policy in the name of an adult or trust company as custodian for the minor under the Act or by assigning and delivering the policy or contract to the custodian. Tex. Prop. Code § 141.010(a)(3). Irrevocable powers of appointment and irrevocable present rights to future payments may be transferred by written notice that the right is transferred. Tex. Prop. Code § 141.010(a)(4). Real and tangible personal property may be transferred by executing and delivering the appropriate transfer instrument to the custodian. Tex. Prop. Code § 141.010(a)(5), (a)(6). If the gift is testamentary, the transfer may be accomplished by a provision in the donor’s will giving the property to an adult as custodian for the minor. Tex. Prop. Code § 141.004(a). If the designated custodian dies or is unable or unwilling to serve, the donor’s personal representative may designate an eligible successor custodian. Tex. Prop. Code § 141.006(c). The legal representative of a decedent may transfer property without a court order if the property is covered by the Act and the transfer is authorized in the governing will. Tex. Prop. Code § 141.006(a).
Gifts made under the Act are irrevocable, and legal title to the custodial property vests indefeasibly in the minor subject to the provisions of the Act. Tex. Prop. Code § 141.012(b).
During the minority of the donee, the custodian must prudently manage and invest the custodial property. Tex. Prop. Code § 141.013. The custodian must pay or expend for the benefit of the minor as much of the property as he deems advisable to support, maintain, educate, and benefit the minor, in a manner the custodian deems suitable. Tex. Prop. Code § 141.015.
When the minor attains the age of twenty-one, marries, or has his disabilities removed, the custodian must deliver the remaining property to the minor. Tex. Prop. Code § 141.021. If the minor dies before the custodianship is terminated, the custodian must deliver the remaining property to the minor’s estate. Tex. Prop. Code § 141.021(3).
The custodian must keep records of all transactions with respect to the custodial property and make them available for inspection by a parent or legal representative of the minor or by the minor if he is fourteen years old or older. Tex. Prop. Code § 141.013(e). The custodian, if not the transferor, has a noncumulative election each calendar year to charge reasonable compensation. Tex. Prop. Code § 141.016. A third party acting in good faith has no liability for acting on instructions of a person acting as custodian. Tex. Prop. Code § 141.017. Additional transfers to custodianships in existence before September 1, 1995, shall be distributed to the beneficiary on his eighteenth birthday or earlier as prescribed in Tex. Prop. Code §§ 141.021, 141.025.
§ 3.29:1Sale of Property without Guardianship—Minor
An application for the sale of real or personal property under Tex. Est. Code § 1351.001 permits a sale to take place without the appointment of a guardian of the person or estate. The value of the property to be sold may not exceed $100,000. The application may be made by either a parent or the managing conservator of a minor who has no court-appointed guardian. The court may appoint an attorney ad litem or guardian ad litem for a minor ward who does not have a parent or managing conservator willing or able to file an application on his behalf. The proceeds must be placed in the court registry and can be withdrawn only under the provisions of Tex. Est. Code ch. 1355. See forms 3-25 and 3-26 in this chapter.
The sale is usually in the form of a private sale, and the sale must be for cash. Tex. Est. Code § 1351.002(b)(5). As a general rule, these sales are already subject to an earnest-money contract, which should be made subject to the court’s approval. The most important aspect of the sale is whether the ward will receive adequate consideration. Most courts will not approve a sale without an independent appraisal showing the sale is for adequate consideration. If real property is involved, most sales will be conducted through a title company, and a proposed closing statement should accompany the application. The clerk cannot adjust the order of sale to accept a deposit of less money than is shown on the order after it has been signed.
§ 3.29:2Sale of Property without Guardianship of Estate
Under Tex. Est. Code § 1351.052, the request for sale can be made only by a guardian of the person or by a guardian of the person or estate of a ward that has been appointed by a foreign court. This provision is similar to that of section 1351.001. This procedure may be used only if the total value of the property of the incapacitated person does not exceed $100,000. See forms 3-27 and 3-28 in this chapter. The proceeds must be placed in the registry of the court and may be withdrawn only under the provisions of chapter 1355 of the Texas Estates Code. This statute provides that the custodian of the person for whose benefit the money is to be used (referred to as the “creditor” in this section of the statute) may be the father, mother, or unestranged spouse or, if they are unavailable, the person who has actual custody. The custodian may expend the funds placed in the registry of the court for the benefit of the creditor. Additionally, if an inmate in an eleemosynary institution lacks a legal guardian of his estate, the institution may make use of the funds for the inmate. If the custodian does not withdraw the money, the creditor, after termination of the creditor’s disability, may withdraw the money, or the creditor’s heirs or personal representative may withdraw the money as provided by section 1355.105. Tex. Est. Code § 1355.105.
As with sales under section 1351.001, the sale of real and personal property under section 1351.052 is usually in the form of a private sale. The sale must be for cash because the proceeds are to be placed in the court registry. As a general rule, these sales are already subject to an earnest-money contract, which should be made subject to the court’s approval. The most important aspect of the sale is the amount of the net proceeds. Most courts will not approve these sales unless the ward is to receive adequate consideration. If real property is involved, most sales will be conducted through a title company, and a proposed closing statement should accompany the application. The clerk cannot adjust the order of sale to accept a deposit of less money than is shown on the order after it has been signed.
§ 3.29:3Transfer on Death Deed (TODD)
A Transfer on Death Deed (TODD), enacted in 2015, allows a person to transfer title to a named beneficiary or beneficiaries at the grantor’s death. See Tex. Est. Code ch. 114.
The interest conveyed in the property by the TODD is subject to the claims filed against the probate estate for two years after the death of the grantor. The beneficiary of the TODD must survive the grantor by 120 hours to receive the interest in the property. If the beneficiary predeceases the grantor or dies simultaneously with the grantor, the interest in the property passes through the grantor’s estate. A TODD cannot be executed under a power of attorney. If the owner lacks the mental capacity to sign a TODD, an agent or other person may not execute such a document. A TODD can avoid real estate recovery in a Medicaid claim. Tex. Est. Code ch. 114.
§ 3.29:4Enhanced Life Estate “Lady Bird” Deed
An Enhanced Life Estate Deed (“Lady Bird” Deed) allows the owner of real estate to transfer the property upon death to another person outside of the probate process. See Tex. Prop. Code § 5.041. The use of a Lady Bird Deed allows the owner to avoid Medicaid Estate Recovery Program claims. During his lifetime, the grantor retains the right to reside on the property as well as the right to lease, mortgage, or sell the property and retain any proceeds generated from the property. If the grantor wishes to terminate the transfer of the remaining interest in the property to the beneficiary, he can do so at any time.
Unlike a TODD (see section 3.29:3 above), a Lady Bird Deed may be executed by an agent under a power of attorney (with the specific power to do so) so that the issue of capacity of the grantor may be avoided.
When an incapacitated person owns an interest in an ongoing business or commercial property that is in danger of injury, the court may appoint a receiver to take charge of the estate. The receiver is subject to the same compensation and bonding provisions under the Texas Estates Code as a personal representative. The receiver administers the property until the need for the receivership is over. Tex. Est. Code ch. 1354.
In 1999, the provisions for guardianship for missing persons were repealed. Receivers are now to be appointed for missing persons. See Tex. Civ. Prac. & Rem. Code §§ 64.001(d), 64.101–.108.
See forms 3-29 and 3-30 in this chapter.
§ 3.31Removal of Disabilities of Minor
A minor who is (1) either seventeen years old or at least sixteen years old and living apart from parents, a conservator, or guardian and (2) self-supporting (or married) may ask the court to legally remove the disabilities of minority for either limited or general purposes. See Tex. Fam. Code ch. 31.
Although an amicus attorney or attorney ad litem must be appointed, the minor may proceed in his own name, and no next friend is required. Tex. Fam. Code §§ 31.001(b), 31.004. If there is a conservator or guardian, they are to verify the pleadings, but if they are unavailable, the amicus attorney or guardian ad litem shall verify the pleadings. Tex. Fam. Code § 31.002(b).
The petition is decided on a “best interest” standard, and the order must specify whether the removal of disabilities is limited or general in scope and the purposes for which disabilities are removed. Tex. Fam. Code § 31.005.
Except for specific constitutional and statutory age requirements, if the disabilities of the minor are removed for general purposes, the minor then has the capacity of an adult, including the capacity to contract. Such orders from other states may be effective when filed in the deed records of any county in this state. Tex. Fam. Code §§ 31.006, 31.007.
If the minor is a ward under a pending guardianship in a statutory probate court, the judge would have the jurisdiction to remove the disabilities, following In re Graham, 971 S.W.2d 56 (Tex. 1998). Otherwise, the district court would have exclusive jurisdiction.
See forms 3-31 and 3-32 in this chapter.
Many social service agencies provide a variety of services specifically tailored to the needs of children, the disabled, and the elderly. Many will have a particular emphasis toward a target group, such as veterans or the intellectually disabled.
Beyond the emergency order for protective services (see the discussion at section 3.18:2 above), the ability of either Adult Protective Services or Child Protective Services to investigate a potential exploitation or neglect situation is vital to ensuring that the needs of these target groups are met.
The entire guardianship process is based on the concept that the court and the officers of the court must seek any less restrictive alternatives to a full guardianship if they exist and are applicable. Tex. Est. Code § 1001.001.
As an adjunct to the concept of a less restrictive alternative, the idea of “supports and services” is now a part of the mechanism by which a protective framework is to be constructed for a proposed ward. As referenced in Tex. Est. Code § 1002.031, supports and services are additional types of less restrictive alternatives to a full guardianship, used either to avoid or delay the necessity for a guardianship or, when employed after the appointment of a guardian, to lessen the impact or extent of a full guardianship. These formal or informal resources serve to supplement the functional deficits of the individual and to enhance areas where capacity is limited.
These formal or informal resources serve to directly supplement the functional deficits of the individual and to enhance areas where there is some residue of capacity, however limited. Choices of particular supports or services will depend on the residual level of capacity of the individual to be benefitted.
The concept of supports and services is derived from a 1999 U.S. Supreme Court decision, Olmstead v. L.C., 527 U.S. 581 (1999), which held that the “integration regulation” of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101) requires states to place persons with disabilities in community settings rather than in institutions when the community placement has been determined to be appropriate, is a less restrictive setting, and can be reasonably accommodated. Olmstead, 527 U.S. 581; 28 C.F.R. § 35.130.
Supports and services means available formal and informal resources and assistance that enable an individual to—
(1)meet the individual’s needs for food, clothing, or shelter;
(2)care for the individual’s physical or mental health;
(3)manage the individual’s financial affairs; or
(4)make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.
Tex. Est. Code § 1002.0015 provides a nonexclusive list of some of the most commonly used alternatives to guardianship. The appendix to this manual contains a list of several examples of guardianship resources and agency and provider entities.
The twin concepts of supports and services and alternatives are integrated into every step of the guardianship process. They are required to be considered and addressed in the application for guardianship (Tex. Est. Code § 1101.001(b)(3–a), (b)(3–b) and the findings of the court’s order in granting either a full or limited guardianship (Tex. Est. Code § 1101.101).
In a proceeding for restoration or modification (full or partial), supports and services must be considered in—
1.the application and order (Tex. Est. Code §§ 1202.051, 1202.154(a)(4));
2.the physician’s certificate of medical examination (Tex. Est. Code § 1202.152(b));
3.the evidence to be presented before the court (Tex. Est. Code § 1202.151(a));
4.the findings of the court (Tex. Est. Code § 1202.153(c)); and
5.the closing of the guardianship, if available supports or services are the basis for the closing (Tex. Est. Code § 1202.001(b)(2)).
Supports and services must additionally be considered on an annual basis throughout the course of the guardianship as the guardian communicates the Ward’s Bill of Rights to the ward (Tex. Est. Code § 1151.351; see form 4-15 in this manual); during the process of court visits (Tex. Est. Code § 1054.104); and as a part of the court’s review and annual determination (Tex. Est. Code § 1201.052) in the event of a change in the ward’s condition, a change in the law, or a change in available programs.
In re Guardianship of A.E., 552 S.W.3d 873 (Tex. App.—Fort Worth 2018, no pet.), highlights the consideration of supports and services in a guardianship proceeding. The proposed ward was a young female with moderate intellectual disabilities and an IQ between 50 and 55. The certificate of medical examination indicated she was able to make decisions regarding only her basic activities of daily living (bathing, grooming, dressing, walking, and toileting and then only with assistance). The examining physician found she lacked the capacity to understand or make any other decisions and was totally incapacitated. The trial court declined to grant a guardianship, citing the presence of both less restrictive alternatives and supports and services. Importantly, the appellate court, in a textbook-like opinion, categorically reviewed the statutory mandate, carefully discussing the burden of proof required. In reversing the trial court on several bases, it essentially held that supports and services do not include decision-making by others and that, where a proposed ward has a total lack of capacity, the concept of supports and services is no longer applicable.
§ 3.34Mediation and Family Settlement Agreements
Although the resolution of a guardianship contest might remove the procedural obstruction in granting a guardianship, already existing family conflicts may still remain. Mediation can provide an opportunity to address unresolved issues following the guardianship proceedings and to potentially avoid future conflicts in probate.
If potential conflicts are not resolved in mediation, the underlying, unaddressed issues may resurface after the ward’s death in a will contest or other dispute.
If those with the most at stake can reach an accord (with or without the joinder of the ad litem(s)), and with the approval of the court, as circumstances dictate, everyone is generally better off. “A family settlement agreement . . . is a favorite of the law.” Shepherd v. Ledford, 962 S.W.2d 28, 32 (Tex. 1998).