By Wesley E. Wright, Attorney

(originally published in The Source newsletter, by the ARC of Greater Houston, Spring 1995 issue)

THE TEN MOST IMPORTANT QUESTIONS AND ANSWERS REGARDING GUARDIANSHIP OF DEVELOPMENTALLY DISABLED PERSONS.

1. Why are guardianships necessary?

Undoubtedly the most important reason to have a guardianship in place is to expedite medical treatment needed by the disabled person. Doctors and hospitals may refuse to perform necessary but non-emergency procedures on disabled patients without legally authorized consent. A guardian can provide such consent in the most efficient manner.

Having a legal guardian appointed is also useful and sometimes necessary in order to provide consent or acknowledgment on behalf of the ward in an array of situations regarding the ward's care and well-being, such as consenting to behavior modification plans or other treatment plans, consenting to use of medications, acknowledging receipt of rules, regulations and rights, and signing various forms on behalf of the ward regarding benefits, procedures, etc. A guardianship which covers the ward's health and personal care is known as a guardianship of the person.

If the disabled person has any significant assets, a guardian will be needed to manage them unless the assets are in trust. A guardianship which covers the ward's finances is known as a guardianship of the estate. The guardian of the person and the guardian of the estate, if needed, can be and often are the same person.

2. Is guardianship of both the person and estate always necessary?

No. Most developmentally disabled persons have virtually no assets or income in their own name other than Social Security or other entitlements, and perhaps minimal workshop income. The income they do receive can be arranged to be applied directly for their care. In such cases, the courts will rarely require the appointment of a guardian of the estate, which is good because a guardianship of the estate always involves more time and expense. A guardian of the estate must keep meticulous records and file annual accounts, and will usually incur additional attorney fees.

3. Is the guardian liable to a third person for acts of the ward solely because he or she is guardian?

No. Under the Texas Probate Code, a guardian is not liable for acts of the ward merely because she has assumed the fiduciary role of guardian. However, a guardian or prospective guardian should be aware that she is required to carry out guardianship duties in a reasonably responsible manner. If damages result from the guardian's gross negligence, or if the guardian fails to take steps to avoid a reasonably foreseeable harm, then the guardian may be held liable for acts of the ward.

4. Is a guardian legally obligated to pay for the costs associated with the ward's care?

No. A guardian does not assume financial responsibility for the ward merely by becoming guardian. The costs of the ward's care are normally obligations of the ward's estate. However, anyone, including a guardian, can assume a contractual obligation to pay for the ward's care if he chooses to do so. A guardian who wishes to avoid personal financial responsibility for the ward's care should carefully review contracts and modify them if necessary to clarify that the guardian is accepting no personal financial responsibility under the contract. Also, a guardian of the estate may be held personally liable for damages caused by negligently or fraudulently handling the ward's estate. Such liability can be avoided by acting with reasonable prudence and in accordance with applicable guardianship statutes.

5. Does a guardian have the power to consent on behalf of the ward to voluntary in-patient mental health services?

No. Under the Texas Probate Code, a guardian of the person has the power to consent to medical, psychiatric, and surgical treatment on behalf of the ward, but the code specifically excludes voluntary in-patient psychiatric treatment. Therefore, if the ward needs in-patient psychiatric care, the procedure for involuntary commitment must be followed.

6. Am I obligated to become the guardian of a developmentally disabled family member?

No. The Texas Probate Code does contain a priority list setting forth the order in which various family members are to be preferred as guardian, but neither this list nor other statutes actually obligate any particular family member to become guardian. However, the choice to obtain an outside guardian should not be taken lightly. While an outside guardian may be best in certain cases, it is usually beneficial for everyone involved, especially the developmentally disabled person, if a family member serves as guardian. Before making a decision on this matter you should consult with professionals who can give you a clear picture of the benefits, the possible drawbacks, and the responsibilities of being a guardian.

7. Can a developmentally disabled person who has no guardian execute a valid living will (directive to physicians) or any other kind of legal document?

Can a developmentally disabled person who has a guardian execute such documents? Can the guardian execute them on behalf of the ward?

Under the Texas Natural Death Act, a living will or "directive" is defined as "an instruction to withhold or withdraw life sustaining procedures in the event of terminal condition." The Act further states that "a competent adult may at any time execute a written directive," and defines "competent" as "possessing 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 a proposed treatment decision." Anyone, including a developmentally disabled person, who is competent within the meaning of the Act is capable of executing a valid directive. Many developmentally disabled persons do not meet this standard of competence, but some do.

A guardian has no explicit statutory authority to execute a directive on behalf of a ward. In practice, such directives are sometimes executed and accepted, but a guardian has no clear authority in this area. However, while a guardian may not be able to execute a valid advance directive on behalf a ward, a guardian does have authority under the Texas Natural Death Act to make decisions regarding the withholding or withdrawal of life-sustaining procedures on behalf of a ward when situations arise requiring such decisions.

As a very general rule, a person must have the ability to understand fully the meaning of a document in order to validly execute that document. A developmentally disabled person who has a guardian of the person will be deemed to lack capacity to execute virtually all types of documents, but the guardian may execute many of them on behalf of the ward.

8. What is informed consent?

Informed consent to a particular treatment is a consent that is given with an understanding of the nature of the treatment, its probable and possible benefits and risks, its alternatives, and the probable and possible consequences of not doing the treatment.

The issue of informed consent may surface with regard to medical procedures, drugs, or any other treatment, e.g. a behavior modification plan. Under current statutes and rules, Medicaid administrators now require, with regard to residents of ICF/MR facilities, that informed consent be obtained from a person legally authorized to provide such consent, or else Medicaid funds may be withheld from the facility. Also, health care providers usually require informed consent by a legally authorized person in order to protect themselves from liability.

In the case of a ward, informed consent is obtained through the guardian. In the case of a developmentally disabled person who has no guardian, a statutory procedure exists by which a legally valid consent can be obtained through a surrogate decision-maker. However, this procedure has some disadvantages compared to guardianship: The disabled person's capacity must be officially assessed with regard to each and every treatment decision, the system is administratively burdensome, and the authority granted to a surrogate decision-maker is narrower than that of a guardian.

9. If I am the guardian of my child, who will succeed me as guardian after I die?

The decision as to who will be the successor guardian is made by the court which has jurisdiction over the guardianship on the basis of what is in the ward's best interest. In making this decision, the court will consider and in many cases follow your wishes concerning a successor guardian as expressed in your will. However, your wishes are not binding on the court. The court is required by law to inquire as to the preferences of the ward, and the court may weigh a number of other factors in reaching its conclusion.

10. How can I create a guardianship when the developmentally disabled person has no assets to pay for the proceeding?

Under current law, when a proposed ward's estate is insufficient to pay for the costs associated with a guardianship proceeding, the law states that the county shall pay for the costs of establishing a guardianship of the person. If the ward has an estate, the cost of the proceeding shall be paid out of the estate of the ward. Not all judges read these laws the same so it is best to have your attorney check into this before proceeding.