Alternatives To Guardianships Of The Person
Guardianship of the person involves the probate court’s judicial finding of incapacity of a minor or adult. Once the court finds the person lacks some or all capacity, the court appoints an individual to be responsible for that person’s non-financial interests. Often, the court reaches this restrictive measure because no option can better protect the incapacitated person. Other times, some alternatives are not nearly as restrictive as the imposition of a guardianship.
For example, the Texas Health and Safety Code provides several useful options. Under that Code’s provisions, a person may take advantage of naming an agent under a Medical Power of Attorney. With some pre-need estate planning, a person could avoid guardianship altogether by nominating someone to make the same kinds of decisions before the need ever arises. Directives to Physicians, also authorized under the Health and Safety Code, might be useful as well. These documents can be used correctly to communicate a person’s intentions and directions regarding medical treatment under terminal or other specified circumstances.
Likewise, the Health and Safety Code may help avoid guardianship and permit a surrogate decision-maker nomination, much like the agent under a Medical Power of Attorney. In both emergency and non-emergency situations, Texas law may provide a means of assisting the person without the time and expense of a formal guardianship.
Keep in mind that the probate court does not approach the creation of a guardianship lightly. Because the process can involve removing rights and liberties that a person would otherwise enjoy, most probate judges in Texas are prudent to invoke their guardianship authority only in those circumstances where it appears that there is no other option available. Even then, by requiring appointed guardians to report on the condition of their ward annually, those probate judges are careful to keep a watchful eye on the guardian to see that they are making decisions consistent with the ward’s best interests.
Too often, guardianship issues become litigated matters. They are particularly emotional when guardianship of the person is at issue. These cases can pit brothers against sisters, sons against mothers, and so on. Meanwhile, a person who may need help is often tugged in both directions. The fact is that in many cases, these fights have been brewing for some time, and they are going to happen despite all the best estate planning. Human nature often knows no logic. But, with alternatives to formal guardianships in place, the probate court and the parties can begin to work together toward crafting a result that accomplishes what everyone should be concerned about – the well-being and best interests of the incapacitated person.