Disputes Related To The Medical Evidence Of Incapacity
A court cannot create a guardianship without receiving a report from a medical doctor that shows that the incapacitated person is actually incapacitated and the degree to which they are incapacitated. The Courts across Texas have adopted a fairly standardized format for the report that doctors submit in guardianship cases to explain the degree of a person’s incapacity. Guardianship litigation can arise when different doctors disagree as to the extent of the incapacity. For instance, one doctor may find the incapacity to be “partial” while another says that the incapacity is “full.”
To resolve these disagreements, courts will frequently order an “independent medical exam,” which is an examination performed by a doctor selected by the Court, not selected by either of the parties to the guardianship. In most cases, the opinion of the doctor appointed to perform the independent exam is going to be shape the Court’s opinion on the guardianship litigation.
Another issue that can arise in guardianships is the specialty of the doctor who provided the report to the court. In many cases, a family will simply receive a report from the incapacitated person’s general family practice doctor rather than a neurologist or geriatric psychiatrist. Challenges sometimes arise as to the skill and capability of the general practice doctor in expressing his opinions. When they do, guardianship litigants are best-advised to seek more qualified doctors to perform a skilled evaluation of the patient.