Because guardianship takes away a person’s rights, it is important to consider alternatives Texas guardianship alternatives.
Texas Guardianship Alternatives
Because guardianship takes away a person’s rights, the Texas courts will look for a less restrictive alternative before granting a guardianship. Less restrictive alternatives include the following:
Power of Attorney
A Power of Attorney (POA) is an instrument executed by an adult who has capacity authorizing another person to act as his or her agent. The power to the agent may be either specific or general.
Durable Power of Attorney
If specifically stated in the document, the POA becomes a durable power of attorney and does not terminate upon the disability or incapacity of the principal. The durable POA also may be limited so that it takes effect only upon the principal’s disability. It must be signed by the principal and notarized, but does not need to be witnessed.
A durable POA terminates upon qualification of a guardian of the estate. A durable POA also may be terminated by the principal or may have date of expiration as provided in the document.
Durable Power of Attorney for Health Care
The durable power of attorney for health care is an instrument executed by an adult with capacity giving another person the authority to make health care decisions for him or her.
This power only takes effect upon written certification by a physician that the principal lacks capacity to make health care decisions. The physician’s certificate must be filed in the medical records of the patient.
The durable power of attorney for health care must be signed by the principal in the presence of two (2) disinterested witnesses. The witnesses must also sign the instrument.
The durable power of attorney for health care does not terminate upon qualification of a guardian unless so ordered by the court.
Directive to Physicians
The Directive to Physicians is a document that allows an adult with capacity to instruct physicians to withhold artificial means of extending the natural process of dying. To make a valid Directive to Physician, one must be:
- at least eighteen (18) years old;
- of sound mind; and
- acting of his or her own free will
A Directive to Physicians need not be notarized but must be witnessed by two qualified persons. Two physicians must make a determination that the patient has a terminal condition and that the patient’s situation meets other statutory requirements before acting on the directive.
Management of Community Property
If an individual is judicially declared incapacitated, the spouse may have the full authority to manage, control and dispose of the entire community estate without the necessity of a guardianship, if the court does not find the spouse to be disqualified.
The standards for disqualification are those which apply to guardians. The qualification of a guardian of the estate does not take away control from the competent spouse over the community property.
