Medical Power of Attorney or Guardianship: How to Decide

Medical Power of Attorney or Guardianship: How to Decide

Personal Injury Lawyer

A Medical Power of Attorney is a document that is signed by a principal, a competent adult, that directs a person that the principal trusts to act as an agent and make healthcare decisions on the principal’s behalf should the principal be unable to make them for themselves. This document is effective immediately once it is signed by witnesses or notarized, and it will continue on indefinitely unless there is a specific termination date stated. 

The Medical Power of Attorney allows for the agent to make healthcare decisions for the principal only if the healthcare provider/ physician states in writing that the principal is incompetent and unable to make decisions on their own. The agent is able to make decisions on a wide array of issues except for the principal’s commitment to a mental institution, convulsive treatment, psychosurgery, abortion, or the neglect of comfort care. 

The Medical Power of Attorney may be revoked by the principal by notifying the agent or physician either orally or in writing. In some cases, this does not need to be done. For example, if the agent was the spouse of a principal, a divorce between the two would revoke the Medical Power of Attorney. 

Obtaining a Medical Power of Attorney may not seem necessary to one who is young and healthy, however, it could become necessary of one was to be involved in an accident and become seriously injured. Having an appointed agent allows this trusted person to make decisions regarding important medical issues for you if you become seriously injured, ill, or unable to make the decisions for yourself. It is important that the agent be someone who shares values, and knows your basic medical history. There is also an option to have an alternate agent, however, it is not required.

Anyone can be an agent except for the principal’s physician or healthcare provider, an employee of the physician/provider (unless they are family), residential care provider, or an employee of a residential care provider (unless they are family). 

In order to obtain a Medical Power of Attorney one can contact: the Texas Department of Aging and Disability Services, local hospital, long-term care facility, physician, attorney, or any other state health organization. There must be two witnesses present at the time of the signing of the document, or the principal may sign it and have it notarized by a public notary. At least one of the witnesses cannot be the agent designated, a spouse or relative by blood, attending physician, entitled to the principal’s estate, or an employee at the place where the principal is a patient/ a person providing direct care to the patient. 

The principal’s physician and their employees must follow the directive of the agent to the consistency of the desires of the principal, law, and Medical Power of Attorney. If the physician does not wish to follow an agent’s decision, the physician must inform the agent as soon as possible, which allows for the agent to select another physician who is willing to follow the directives of the agent. 

In the instance that a physician does not want to remove life-sustaining treatment to a principal, but the agent wishes to remove the treatment, there is a specific procedure that is followed. First, the physician’s decision will be reviewed by ethics or a medical committee in which neither the physician whose decision is being reviewed nor the agent may attend. After a decision is made by the ethics or medical committee, the agent must be provided with an explanation of the decision. If the agent or the physician disagrees with the decision, the physician or provider must transfer the patient to a physician who is willing to comply with the agent. If these procedures are correctly followed, the healthcare provider and physicians are immune to disciplinary action, civil liability, and criminal liability. 

On the other hand, if the agent wishes to continue life-sustaining treatment and the physician does not, similar procedures will be followed except for a few minor differences. During the meeting of the ethics or medical committee, the agent may attend. Once the decision is made, if the agent disagrees, the patient may be transferred to another physician who will continue providing life sustaining treatment. However, after the 10th day has passed of the agent being notified of this decision, and the agent has not transferred the patient to a different physician, the physician who decided that they did not want to continue life-sustaining treatment is not obligated to continue it. If this procedure is correctly followed, the hospital and its physicians cannot receive disciplinary action, civil liability, or criminal liability. 

If the decision is not reviewed by an ethics or medical committee, the physician and hospital are not granted immunity. Agents can also review and receive information about the principal’s mental and physical condition, execute release required to receive this information, and consent to the disclosure of information. An agent will not be held liable criminally to any of the decisions made under Medical Power of Attorney as long as the agent is acting under good faith. 

It is important to obtain a Medical Power of Attorney before you have entered the hospital and need one. This will prevent added stress when it you are already struggling. This document is easy to obtain and allows for you to have the peace-of-mind in knowing that you will be taken care of properly, even if you are unable to make decisions for yourself. Consulting with an Attorney to prepare your Medical Power of Attorney also eliminates any confusion between a Directive to Physician and appointing an Agent over your medical decisions.  

A legal Guardian is different from an Agent acting on behalf of a Medical Power of Attorney. A Legal Guardian is someone with the legal authority to care and make decisions for a minor child or incapacitated adult.  Becoming a legal guardian over someone else involves filling out a number of forms and going through one or more court proceedings to be sworn in as the Guardian. It is extremely important that you take all of the proper steps to become a legal guardian in order to ensure that you have the legal authority to make important decisions for the person in your care. This is a difficult and lengthy process whereas you would need to retain an Attorney to assist you with the legal process.

Deciding whether to become someone’s legal guardian is a decision that you must determine is right for you and your situation. Guardians are court-supervised caretakers for minors and incapacitated persons. Guardians are responsible for the well-being of their wards (the person for whom they are the guardian), and may also be responsible for handling the person’s assets and finances. The guardian must periodically report to the court on the ward’s status. Make sure that you are prepared to accept the responsibility of acting as a legal guardian for someone by consulting with an Attorney to gain the knowledge of everything that is required in becoming someone’s guardian.

You must also take into consideration alternatives to becoming a legal guardian for your loved one, family or friend. There may be other avenues to protect the child’s or adult’s well-being short of a legal guardianship. Some alternatives include a power of attorney, living will, health care proxy, and/or a representative payee arrangement in the event that the proposed ward is receiving social security benefits. You may also be able to file for a temporary guardianship, which is a faster process for emergency cases, and ends when the court appoints a permanent guardian or the temporary guardianship expires. 

Another important step you must make is verifying whether or not your prospective ward is eligible for a guardianship. The eligibility standards for guardianships differ between children and adults. Procedures differ by state, but courts will appoint an attorney to investigate and represent the interests of the proposed ward. A child can have a non-parent guardian as long as the child is under 18 years of age and has not been emancipated by a court order. An adult is not eligible for a guardianship unless the court finds evidence that the adult is legally incapacitated, either by age or disability. Incapacity must be proven by clear and convincing evidence that the person cannot provide his or her own food, clothing, or shelter, manage physical health or financial affairs. Texas Courts require a statement also known as Certified Medical Exam from a doctor regarding the ward’s incapacity upon filing the initial Motion to Appoint a Guardian of Person or Estate.

You then have to determine if you are eligible to become a Guardian. To become a guardian, you must demonstrate to the court that you are capable of accepting the responsibility of a guardianship. You do not need to be a relative of the proposed ward to become a Guardian however some of the basic requirements that will make you ineligible are as follows: 

  • Have a history of bad conduct, like a criminal record for violence or dishonesty;
  • Have conflicts of interest with the ward, such as owing an outstanding debt to the ward or standing to benefit from taking advantage of the ward; 
  • Are inexperienced with providing care or managing property and resources;
  • Lack sufficient education to provide care or manage property and resources; or
  • Are a minor or incapacitated person yourself.
  • If two or more eligible people both wish to become the guardian, the court will have to choose one over the other. In Texas, if more than one person seeks a guardianship, the court will consider whether the proposed ward designated someone to serve as guardian prior to his or her incapacity. The Court will then give priority in to proposed guardians in the following order: anyone designated by the last surviving parent of the ward, the ward’s spouse, the ward’s next of kin, and non-relatives.

Some clarification between guardianship of the person versus guardianship of the estate is something that majority of people do not understand either. Your state may require you to submit different forms depending on whether you wish to become the guardian of the person or the estate, or both. Guardianship of the person means that you are responsible for the well-being of the ward, from personal care and maintenance to medical decisions. If the ward is a child then you will be responsible for their living conditions, schooling, medical needs, and any harm the ward causes. Guardianship of the estate means that you are tasked with managing, investing, protecting, and disposing of the ward’s assets and property in accordance with the law and the ward’s best interests.

The process of having someone declared legally incapacitated can be a challenging process. The process can be further complicated if the ward has substantial property or assets to manage. It may be more time and cost-effective to have an attorney handle your case. Some courts with particularly complicated guardianship processes may not hear guardianship applications filed by non-lawyers or pro se parties. Contact an estate planning lawyer in Arlington, TX today to schedule your free consultation to discuss your options and needs.



Thanks to Brandy Austin Law Firm, PLLC for their insight into estate planning and medical power of attorney.

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