Two Key Alternatives to Guardianship When There Is No Medical Power of Attorney

Caring for an incapacitated or disabled loved one can be challenging and is usually further complicated when the loved one requires medical treatment. If the incapacitated or disabled person signed a medical power of attorney prior to his or her incapacity, the agent named in the medical power of attorney can make medical decisions on the person’s behalf. However, and as is frequently the case, either the person did not sign a medical power of attorney while he or she had capacity, or the person never had capacity to begin with. A healthcare provider might instruct the caregiver to seek a guardianship of the person to consent to medical treatment, but guardianships can be time-consuming and expensive, and Texas law only allows for a guardianship when less restrictive means of caring for the incapacitated person are not available. There are several alternatives to guardianship under Texas statutory law, but there are important limitations to these alternatives that should be considered.

Texas law provides that if an incapacitated, adult patient does not have a legal guardian or an agent under a medical power of attorney and is in a hospital or nursing home or under the care of a home and community support services agency, the following persons – in the following order of priority – may act as the patient’s “surrogate decision-maker” and consent to medical treatment on the patient’s behalf:

1. the patient’s spouse;
2. the patient’s adult children;
3. the patient’s parents; or
4. the patient’s nearest living relative

While the above alternative may be helpful in many situations, it is important to note that it only applies to a person in a hospital or nursing home or under the care of a home and community support services agency, such as adult daycare or hospice. It does not apply to medical treatment that takes place outside of those locations.

Depending on the severity and nature of the incapacity, another alternative would be to have the person sign a “supported decision-making agreement,” which is a legal document wherein an adult may appoint another person to act as his or her “supporter” and provide guidance and assistance in making that person’s life decisions, including understanding and consenting to medical treatment and managing the person’s financial affairs. Texas law specifically recognizes supported decision-making agreements as a less restrictive alternative to guardianship for adults with disabilities who need assistance with making decisions regarding daily living but who are not considered incapacitated persons for purposes of establishing a guardianship.

The most important distinction between a surrogate decision-maker and a supporter is that the surrogate decision-maker is the one actually consenting to the medical treatment, whereas a supporter may only assist in making decisions and may not make decisions on behalf of the disabled person; the disabled person still retains the ability to make decisions for himself or herself. The biggest drawback to a supported decision-making agreement is that it does not apply in situations where the person is incapacitated to a degree such that his or her informed consent to medical treatment is an impossibility.

Even though these alternatives exist, having a medical power of attorney in place for yourself is the best method of ensuring that you will receive the proper care that you need if you ever become incapacitated, without the cost and hassle of a guardianship or the drawbacks and limitations of surrogate decision-making and supported decision-making. If you do not have a medical power of attorney in place, you should contact an experienced estate planning attorney to ensure that you are protected in the event of an emergency or your incapacity.

You may visit our website at www.wrightabshire.com. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case but should be considered general information.