I.  AVOIDING GUARDIANSHIP OF THE PERSON

1.Emergency Protective Order (“EPO”) or Emergency
Order for Protective Services (“EOP”): Tex. Hum. Res.
Code § 48.208A procedure to remove a person lacking
capacity to consent to medical services from a situation
posing an immediate threat to life or physical safety.  

Adult Protective Services files a verified petition and an
Attorney Ad Litem is appointed. On a finding of
probable cause by the probate court of the threat and
lack of capacity, the person is removed to treatment
and examined within 72 hours.  The removal may last
no longer than 72 hours unless extended by the court
for up to 30 days.  An application for temporary and
permanent guardianship usually follows.

2. Surrogate Decision Making (“SDM”) – §313.001-.
007, Health and Safety Code – For nonemergency
medical decisions to be made for incapacitated
individuals who are either in a hospital or nursing home
without the necessity of a guardianship.

Decision–Maker Priority:  1) the patient's spouse;  2)
an adult child of the patient with the waiver and
consent of all other qualified adult children of the
patient to act as the sole decision-maker;  3) a majority
of the patient's reasonably available adult children;  4)
the patient's parents; or  5) the individual clearly
identified to act for the patient by the patient before the
patient became incapacitated, the patient's
nearest living relative, or a member of the clergy.

Limitations on consent: Surrogate decision-maker
cannot consent to: 1) voluntary inpatient mental health
services; 2) electro-convulsive treatment; 3) the
appointment of another surrogate decision-maker; 4)
emergency decisions; or 5) end-of-life decisions
(extending or withdrawing life support)

SDM does not: 1) replace the authority of a guardian
nor an agent under a medical power of attorney; 2)
authorize treatment decisions for a minor unless the
disabilities of minority have been judicially removed; 3)
authorize patient transfers under Chapter 241 of the
Health and Safety Code.

Withdrawal of Life Support: for provisions concerning
withdrawal of life support where no Directive to
Physicians has been executed, and in situations where
there is no guardian, see Health & Safety Code §166.
039.

3. Surrogate Decision Making for Mentally Retarded
Persons- §597.041, Health & Safety Code –  A more
specialized form of surrogate decision-making, this
statute allows SDM Committees to act for MR persons
who reside in an intermediate care facility for the
mentally retarded (ICF/MR) – Allows medical and non-
medical decisions to be made by the committee.

4. Emergency Medical Treatment Act - §773.008,  
Health and Safety Code - In certain limited
circumstances involving emergency situations, consent
to medical treatment does not
have to be given, it is implied.  Hospital emergency
rooms could not function if consent had to be secured
beforehand.

5. Managing Conservatorships Ch. 153, Family Code
Functional equivalent to Guardian of the Person  
Especially for families involved in a divorce context, a
conservatorship may be used in place of a
guardianship of the person for a minor, but only when
there is no issue of assets belonging to the minor
children.  The Family Code provides no monitoring
mechanism for property management.  Also, inherent
jurisdictional conflicts exist between the Family
Code and the Probate Code, especially as to visitation
when a disabled minor under a conservatorship needs
a guardianship upon attaining age 18.  

Check the small print: The divorce decree, if there is
one, should be carefully examined regarding any
management powers granted either spouse regarding
property of the children.  Family Code §153.132
grants a parent appointed sole managing conservator
essentially the full rights of a guardian of the person
and in Family Code §153.073, the right to manage the
property of the child “to the extent that the estate has
been created by the parent or the parent’s family.” But
there is still no mechanism to supervise the use of the
money. Family Code §153.011 does allow the Family
Court judge to require a bond of the managing
conservator.

6.School Admission Procedures - §25.001(d),
Education Code – Under §25.001(d) of the Education
Code, a school district may adopt guidelines to allow
admission of non-resident children to school without
the need for a guardianship. You may want to find out
who in the school district administration possesses this
information before you need it.

7.NEW as of 2005! School Admission Procedures -
§25.001(b)(9), Education Code – Under §25.001(b)(9)
of the Education Code, a school district may adopt
guidelines to allow admission of non-resident children
to school if a grandparent of the child resides in the
school district and the grandparent provides “a
substantial amount” of after-school care for the child.
The local school board is to adopt guidelines to
implement this provision.  No cases yet as to
how this might square with Education Code §25.001(d)
if there is a guardian, but the child wants to live with
the grandparent.

8.  Court Ordered Mental Health Services - §462.001,
§571.001, §574.001, Health & Safety Code – In the
case of a chronically mentally ill person, a temporary
involuntary commitment may well be preferable to a
guardianship.  A guardianship, with its attendant
removal of functional rights, might well be much more
restrictive once the patient/ward has become stabilized
on medication.  Commitment provisions for the
chemically dependent, mentally retarded, persons with
AIDS and tuberculosis are also available in limited
circumstances.
Here is some excellent
information on alternatives to
guardianship.  This is to aid
you in the process and
educate you in your choice of
attorney.  It is not specific
legal advice and will not, by
itself, constitute an attorney /
client relationship.  

Special thanks to Judge King
in the first Tarrant County
Probate Court, on whose
material this is largely based.

Avoiding Guardianship of
the person

Advanced Medical Directives

Avoiding a Guardianship of
the Estate

Limiting the Effect of the
Guardianship
Law Office of Eric J. Smith
1008 North Davis
Arlington, Texas 76012
ph: 817-860-2800
fax: 817-860-2801
eric@midcitieslaw.com
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