This presentation on the Legal and Ethical Aspects of Incapacity was created by Lori Ashmore-Peters of The Ashmore Law Firm in Dallas, TX. In this presentation Mrs. Peters covers: The Guardianship Process, The Involuntary Commitment Process, How The Guardianship and Involuntary Commitment Processes can work together, and the alternatives to the Guardianship Process such as Medical Power of Attorney, Directive to Physicians, HIPPA Authorization and Durable Power of Attorney.

1. The Legal and Ethical Aspects of
Incapacity
Presented By:
www.ashmorelaw.com
3636 Maple Avenue
Dallas, Texas 75219
214.559.7202 (phone)
214.520.1550 (fax)
1

2. Interesting statistics in Dallas County:
◦ In 2009 - 6,077 Mental Illness cases were filed
◦ In 2010 - 7,662 Mental Illness cases were filed
◦ In 2011 – 8,091 Mental Illness cases were filed
◦ In 2010 - 288 Guardianship cases were filed
◦ In 2011 - 354 Guardianship cases were filed
There is also an increase in the elderly population:
◦ According to the 2010 census, 13% of the US population
is over the age of 65.
2

3. Think about the following scenario that goes something like
this…
Son brings patient in because she has become more and
more confused. She is his 72 year old mother. Her husband
died over 10 years ago; however, she has started talking like
he is still alive. She is beginning to have conversations with
her deceased husband, as well as her deceased parents.
3

4. You may be thinking she is showing signs of Dementia or
Alzheimer’s.
So what’s the problem?
Medically… that may be where it ends, but you need to be
aware of the legal issues when you hear the rest of the
story…
Daughter, who has been estranged from her mother, is
starting to come back into her life with her new “friend.”
Daughter has taken Mom to the bank a couple of times and
is staying at the house with her friend. You have a family
meeting explaining Mom’s incapacity and her inability to
make her own decisions. Son and Daughter need to work
together to handle Mom’s affairs. 4

5. Unfortunately in the legal world it doesn’t end there.
Son now calls us… After the family meeting, Daughter
took Mom to the bank. Mom added Daughter to all of
her bank accounts. Not only that, Daughter took Mom
to an attorney and Mom signed a new power of
attorney naming Daughter. To make matters even worse,
Mom deeded the house over to Daughter.
The first thing we discuss is the possibility of a
Guardianship….
5

6. What is a Guardianship?
Texas Probate Code § 602, Policy, Purpose of Guardianship.
A court may appoint a guardian with full authority over an incapacitated person
or may grant a guardian limited authority over an incapacitated person as
indicated by the incapacitated person's actual mental or physical limitations and
only as necessary to promote and protect the well-being of the person. If the
person is not a minor, the court may not use age as the sole factor in
determining whether to appoint a guardian for the person. In creating a
guardianship that gives a guardian limited power or authority over an
incapacitated person, the court shall design the guardianship to encourage the
development or maintenance of maximum self-reliance and independence in the
incapacitated person.
6

7. From the above scenario, even though you, as the doctor,
told the family Mom did not have capacity to take care of
her affairs, legally, there was nothing to stop Daughter from
taking Mom to the bank or having her sign the legal
documents.
A doctor may state that an individual is incapacitated;
however, only a Probate Court can legally declare someone
over the age of 18 incapacitated.
Without this declaration from the Probate Court, that
individual has the same rights as you and I. They have the
right to enter into contracts, sign legal documents, vote,
marry, drive, etc.
7

8. Incapacity has many definitions. One definition is “the
inability to understand information presented, appreciate
the consequences of acting – or not acting on that
information, and to make a choice.”
An individual may be declared medically incapacitated, but
that has no legal effect. Until there is a finding of legal
incapacity, that individual maintains all of their civil rights
and enjoys all of the same privileges of a fully capacitated
individual.
In other words, without a finding of legal incapacity in the
above scenario, Mom had the right to change her bank
accounts, deed her house to Daughter and sign a new
Power of Attorney.
8

9. Texas Probate Code §§ 3(p) and 601(14) gives us the
legal definition of incapacity.
 "Incapacitated person" means:
 (A) a minor;
 (B) an adult individual who, because of a physical or mental
condition, is substantially unable to provide food, clothing, or
shelter for himself or herself, to care for the individual's own
physical health, or to manage the individual's own financial affairs;
or
 (C) a person who must have a guardian appointed to receive funds
due the person from any governmental source.
9

10. Now that we have defined legal incapacity, next we have to
determine whether the medically incapacitated individual
requires a guardianship.
We must also determine whether there is a need for a
Guardian of the Person, Guardian of the Estate, or both.
When a Court finds an individual to be legally
incapacitated, they must also find whether that legal
incapacity exists as it relates to their person, or if it also
encompasses their estate.
What exactly does this mean?
10

11. Texas Probate Code §767 discusses the Powers and
Duties of Guardians of the Person.
 (a) The guardian of the person is entitled to take charge of the person of the ward, and the duties
of the guardian correspond with the rights of the guardian. A guardian of the person has:
 (1) the right to have physical possession of the ward and to establish the ward's legal domicile;
 (2) the duty to provide care, supervision, and protection for the ward;
 (3) the duty to provide the ward with clothing, food, medical care, and shelter;
 (4) the power to consent to medical, psychiatric, and surgical treatment other than the in-patient
psychiatric commitment of the ward; and
 (5) on application to and order of the court, the power to establish a trust in accordance with 42
U.S.C. Section 1396p(d)(4)(B), as amended, and direct that the income of the ward as defined by
that section be paid directly to the trust, solely for the purpose of the ward's eligibility for medical
assistance under Chapter 32, Human Resources Code.
 (b) Notwithstanding Subsection (a)(4) of this section, a guardian of the person of a ward has the
power to personally transport the ward or to direct the ward's transport by emergency medical
services or other means to an inpatient mental health facility for a preliminary examination in
accordance with Subchapters A and C, Chapter 573, Health and Safety Code.
11

12. Texas Probate Code § 768 discusses the General Powers
and Duties of Guardian of the Estate.
The guardian of the estate of a ward is entitled to the possession and
management of all property belonging to the ward, to collect all debts,
rentals, or claims that are due to the ward, to enforce all obligations in
favor of the ward, and to bring and defend suits by or against the
ward; but, in the management of the estate, the guardian is governed
by the provisions of this chapter. It is the duty of the guardian of the
estate to take care of and manage the estate as a prudent person
would manage the person's own property, except as otherwise
provided by this chapter. The guardian of the estate shall account for
all rents, profits, and revenues that the estate would have produced by
such prudent management.
12

13. Texas Probate Code § 770 discusses the Guardian’s
responsibility for the Care of Ward; Commitment
 (a) The guardian of an adult may expend funds of the guardianship as provided by court order to care for and
maintain the incapacitated person. The guardian may apply for residential care and services provided by a public or
private facility on behalf of an incapacitated person who has decision-making ability if the person agrees to be
placed in the facility. The guardian shall report the condition of the person to the court at regular intervals at least
annually, unless the court orders more frequent reports. If the person is receiving residential care in a public or
private residential care facility, the guardian shall include in any report to the court a statement as to the necessity
for continued care in the facility.
 (b) Except as provided by Subsection (c) or (d) of this section, a guardian may not voluntarily admit an incapacitated
person to a public or private in-patient psychiatric facility or to a residential facility operated by the Texas
Department of Mental Health and Mental Retardation for care and treatment. If care and treatment in a psychiatric
or a residential facility are necessary, the person or the person's guardian may:
 (1) apply for services under Section 593.027 or 593.028, Health and Safety Code;
 (2) apply to a court to commit the person under Subtitle D, Title 7, Health and Safety Code (Persons with Mental
Retardation Act), Subtitle C, Title 7, Health and Safety Code (Texas Mental Health Code),or Chapter 462, Health
and Safety Code; or
 (3) transport the ward to an inpatient mental health facility for a preliminary examination in accordance with
Subchapters A and C, Chapter 573, Health and Safety Code.
 (c) A guardian of a person younger than 18 years of age may voluntarily admit an incapacitated person to a public or
private inpatient psychiatric facility for care and treatment.
 (d) A guardian of a person may voluntarily admit an incapacitated person to a residential care facility for emergency
care or respite care under Section 593.027 or 593.028, Health and Safety Code.
13

14. As an attorney, the following are the steps we would take
if presented with the Scenario we discussed earlier:
Son contacts our law firm because he does not know
what to do.
The first determination we need to make is whether we
need a Temporary Guardian or Permanent Guardian.
In order to find whether a Temporary Guardianship is
needed we must first ask ourselves if an immediate
necessity exists. That is, whether harm could come to
mom’s person or her estate if a Guardian is not
appointed immediately.
14

15. Daughter has already taken Mom to the bank
and is now on the bank accounts.
Furthermore, Daughter had Mom sign a new
Power of Attorney.
Mom deeded the house over to Daughter.
Given this scenario, there is an immediate necessity.
We file an Application for Temporary Guardian. The
Court will hear this matter within ten (10) days. It is
in place for 60 days, at which time it expires unless we
show the Court we need a Permanent Guardianship.
15

16. The next question we must ask ourselves is whether
we need a Guardian of the Person, Guardian of the
Estate or both.
In this scenario, we need Guardian of the Person and
Estate to make sure Mom is protected as well as her
assets.
We are ready to convert Temporary Guardianship to a
Permanent Guardianship. We are ready to file our
Application for Appointment of Guardian of the Person
and Estate.
BUT WAIT…
16

17. We are missing a very important document that will be
the basis and foundation of our Application…
The “Doctor’s Letter”
The requirements of this Doctor’s Letter is listed under
Texas Probate Code § 687, Examinations and Reports:
17

18.  (a) Except as provided by Subsection (c) of this section, the court may not grant an application to
create a guardianship for an incapacitated person, other than a minor or person for whom it is
necessary to have a guardian appointed only to receive funds from a governmental source, unless
the applicant presents to the court a written letter or certificate from a physician licensed in this
state that is dated not earlier than the 120th day before the date of the filing of the application and
based on an examination the physician performed not earlier than the 120th day before the date
of the filing of the application. The letter or certificate must:
 (1) describe the nature, degree, and severity of incapacity, including functional deficits, if any,
regarding the proposed ward's ability to:
 (A) handle business and managerial matters;
 (B) manage financial matters;
 (C) operate a motor vehicle;
 (D) make personal decisions regarding residence, voting, and marriage; and
 (E) consent to medical, dental, psychological, or psychiatric treatment;
 (2) provide an evaluation of the proposed ward's physical condition and mental function and
summarize the proposed ward's medical history if reasonably available;
18

19.  (3) state how or in what manner the proposed ward's ability to make or communicate
responsible decisions concerning himself or herself is affected by the person's physical or
mental health, including the proposed ward's ability to:
 (A) understand or communicate;
 (B) recognize familiar objects and individuals;
 (C) perform simple calculations;
 (D) reason logically; and
 (E) administer to daily life activities;
 (4) state whether any current medication affects the demeanor of the proposed ward or the
proposed ward's ability to participate fully in a court proceeding;
 (5) describe the precise physical and mental conditions underlying a diagnosis of a mental
disability, and state whether the proposed ward would benefit from supports and services that
would allow the individual to live in the least restrictive setting;
 (6) in providing a description under Subdivision (1) of this subsection regarding the proposed
ward's ability to operate a motor vehicle and make personal decisions regarding voting, state
whether in the physician's opinion the proposed ward:
 (A) has the mental capacity to vote in a public election; and
 (B) has the ability to safely operate a motor vehicle; and
 (7) include any other information required by the court.
19

20. To simplify this, the Dallas County Probate Courts have
created a form Doctor’s Letter that meets all of the
above requirements.
After reviewing the original completed Doctor’s Letter
the Application is prepared attaching the Letter as an
exhibit.
The only involvement at this point for the doctor is
completing this Doctor’s Letter.
20

21. But wait…
The Court now appoints an Attorney Ad Litem. The
responsibility of this Attorney Ad Litem is to advocate for
the individual, (“Proposed Ward”).
If the patient wants to contest the Application, now as the
doctor, you may have more of an active role in the legal
process. Keep in mind the individual or any interested
person may contest these proceedings.
If the contest is centered around whether a Guardianship
is necessary or the degree of incapacity is being
questioned, then the doctor becomes an integral part of
the proceedings.
21

22.  b) If the court determines it is necessary, the court may appoint the necessary physicians to
examine the proposed ward. The court must make its determination with respect to the necessity
for a physician's examination of the proposed ward at a hearing held for that purpose. Not later
than the fourth day before the date of the hearing, the applicant shall give to the proposed ward
and the proposed ward's attorney ad litem written notice specifying the purpose and the date and
time of the hearing. A physician who examines the proposed ward, other than a physician or
psychologist who examines the proposed ward under Subsection (c)(2) of this section, shall make
available to an attorney ad litem appointed to represent the proposed ward, for inspection, a
written letter or certificate from the physician that complies with the requirements of Subsection
(a) of this section.
 (c) If the basis of the proposed ward's alleged incapacity is mental retardation, the court may not
grant an application to create a guardianship for the proposed ward unless the applicant presents to
the court a written letter or certificate that:
 (1) complies with Subsection (a) of this section; or
 (2) shows that:
 (A) not earlier than 24 months before the date of the hearing, the proposed ward has been
examined by a physician or psychologist licensed in this state or certified by the Department of
Aging and Disability Services to perform the examination, in accordance with rules of the executive
commissioner of the Health and Human Services Commission governing examinations of that kind;
and
 (B) the physician's or psychologist's written findings and recommendations to the court include a
statement as to whether the physician or psychologist has made a determination of mental
retardation in accordance with Section 593.005, Health and Safety Code.
22

23. Depending on the facts surrounding the contest, the
Court may appoint a Guardian Ad Litem. The role of
the Guardian Ad Litem is to act in the best interest of
the Proposed Ward.
NOTE: There is a difference between the Attorney Ad
Litem and the Guardian Ad Litem.
HOWEVER, both are entitled to receive any and all
medical records or reports from any doctor’s office or
medical facility, hospital, etc.
So what exactly is the doctor or mental health
provider’s involvement now?
23

24. The involvement may be as little as having a phone
conversation with the attorneys and ad litems,
OR
As involved as giving a deposition or testimony in open
court.
Remember, when determining (1) whether an individual
is legally incapacitated, and/or (2) the degree of the legal
incapacity, the Court is looking to that Doctor’s Letter
or even the doctor’s testimony in open court.
24

25. So far we have answered the question “what is a
Guardianship?”
We have defined Guardianship as well as legal incapacity.
Now we know that only a Probate Court can legally
declare someone over the age of 18 incapacitated.
We also know that even though an individual may be
found to be medically incapacitated, they may not be
legally incapacitated.
So what’s next?
25

26. Now we will discuss those individuals who are
incapacitated because of a mental illness and the
Involuntary Commitment Process.
Later, we will discuss how a Guardianship can help
facilitate the Involuntary Commitment process and vice
versa, and how they can go hand in hand.
26

27. The Health and Safety Code gives us the applicable law as
it relates to the mentally ill, voluntary inpatient mental
health services, emergency detention, court-ordered
mental health services, etc.
For purposes of this presentation, we will discuss the
involuntary commitment process.
Health and Safety Code § 573.001 and § 573.011 discuss
the requirements for Apprehension by a Peace Officer
Without a Warrant and the requirements for an
Application for Emergency Detention, respectively.
27

28. §573.001. Peace Officers Application for Detention
states:
 (a) A peace officer shall immediately file an application for detention after
transporting a person to a facility under Section 573.001.
 (b) The application for detention must contain:
 (1) a statement that the officer has reason to believe and does believe that the
person evidences mental illness;
 (2) a statement that the officer has reason to believe and does believe that the
person evidences a substantial risk of serious harm to himself or others;
 (3) a specific description of the risk of harm;
 (4) a statement that the officer has reason to believe and does believe that the risk
of harm is imminent unless the person is immediately restrained;
 (5) a statement that the officer's beliefs are derived from specific recent behavior,
overt acts, attempts, or threats that were observed by or reliably reported to the
officer;
 (6) a detailed description of the specific behavior, acts, attempts, or threats; and
 (7) the name and relationship to the apprehended person of any person who
reported or observed the behavior, acts, attempts, or threats.
28

29. §573.011. Application for Emergency Detention states:
(a) An adult may file a written application for the emergency detention of
another person.
(b) The application must state:
(1) thatthe applicant has reason to believe and does believe that the
person evidences mental illness;
(2) thatthe applicant has reason to believe and does believe that the
person evidences a substantial risk of serious harm to himself or others;
(3) a specific description of the risk of harm;
(4) that the applicant has reason to believe and does believe that the risk
of harm is imminent unless the person is immediately restrained;
(5) that the applicant's beliefs are derived from specific recent behavior,
overt acts, attempts, or threats;
(6) a detailed description of the specific behavior, acts, attempts, or threats;
and
(7) adetailed description of the applicant's relationship to the person
whose detention is sought.
(c) The application may be accompanied by any relevant information.
29

30. Once this process begins and an individual is transported
to a psychiatric facility, the MI Court, per the Health and
Safety Code, appoints an attorney to represent the
patient.
The attorney has the authority and responsibility to visit
with the patient and obtain access to the medical and
psychiatric records.
At the time of appointment, the attorney is not given the
patient code, therefore although the attorney does not
have the patient code, they are still to be given all of the
information and the ability to privately meet with the
patient.
30

31. The attorney’s role is to advocate for the patient. What
that means is if the patient expresses they want to leave
the hospital, the attorney must argue for that.
What is the doctor’s role in this process?
The doctor must complete a Certificate under Health and
Safety Code section 574.011, Certificate of Medical
Examination for Mental Illness, which states:
31

32.  (a) A certificate of medical examination for mental illness must be sworn to, dated, and signed by the examining
physician. The certificate must include:
 (1) the name and address of the examining physician;
 (2) the name and address of the person examined;
 (3) the date and place of the examination;
 (4) a brief diagnosis of the examined person's physical and mental condition;
 (5) the period, if any, during which the examined person has been under the care of the examining physician;
 (6) an accurate description of the mental health treatment, if any, given by or administered under the direction of
the examining physician; and
 (7) the examining physician's opinion that:
 (A) the examined person is mentally ill; and
 (B) as a result of that illness the examined person is likely to cause serious harm to himself or to others or is:
 (i) suffering severe and abnormal mental, emotional, or physical distress;
 (ii) experiencing substantial mental or physical deterioration of his ability to function independently, which is
exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's
basic needs, including food, clothing, health, or safety; and
 (iii) not able to make a rational and informed decision as to whether to submit to treatment.
 (b) The examining physician must specify in the certificate which criterion listed in Subsection (a)(7)(B) forms the
basis for the physician's opinion.
 (c) If the certificate is offered in support of an application for extended mental health services, the certificate must
also include the examining physician's opinion that the examined person's condition is expected to continue for
more than 90 days.
 (d) If the certificate is offered in support of a motion for a protective custody order, the certificate must also include
the examining physician's opinion that the examined person presents a substantial risk of serious harm to himself or
others if not immediately restrained. The harm may be demonstrated by the examined person's behavior or by
evidence of severe emotional distress and deterioration in the examined person's mental condition to the extent
that the examined person cannot remain at liberty.
 (e) The certificate must include the detailed reason for each of the examining physician's opinions under this
section.
32

33. This Certificate, as with the Doctor’s Letter in the
Guardianship process, is the basis and foundation at the
patient’s commitment hearing.
The doctor must take the stand, as the State’s witness, to
testify why the patient should be committed to a psychiatric
facility for inpatient treatment.
The Attorney for the patient will have a right to cross
examine the doctor, in addition the patient will have the
right to testify on their own behalf.
If the Judge finds by clear and convincing evidence the
criteria as set out in Health and Safety Code section
574.034, they will sign the Order for Temporary Mental
Health Services.
33

34. We get a call from Father with the following situation:
◦ Son is 24 years old
◦ Has not slept in days
◦ Stays up all night wandering around
◦ Has had psychiatric hospitalizations in the past
◦ Last one was 2 years ago
◦ Has been seeing psychiatrist but is now refusing to go
◦ Had been taking his psychiatric medications, but stopped 2
months ago
◦ Has not eaten in last couple of days
◦ Increasingly agitated
◦ Throwing and breaking items
◦ Threatening Father
◦ Son is refusing to voluntarily go to the psychiatric facility
◦ According to Son, he does not have a mental illness, but actually
Father is the one with the problem.
34

35. What does Father do?
We can agree Son is a danger to himself and others,
which has been evidenced by a recent overt act.
Father has TWO options…
OPTION 1:
Call 911 and under Health and Safety Code
Section 573.001, Son will be apprehended by the
police without a warrant and taken to a
psychiatric facility that has an ER.
35

36. OPTION 2:
Father can fill out an Application for an MIW or
“Mental Illness Warrant.” under Health and Safety
Code Section 573.011 Once the Order is signed
by the Judge the Warrant is taken to the Sheriff’s
department to be executed within 10 days. Once
executed, Son will be picked up and taken to a
psychiatric facility that has an ER.
36

37. Once Son is evaluated in the ER, the doctor will
determine whether he meets the criteria to be admitted
to the psychiatric facility.
Once admitted, the Involuntary Commitment Process will
begin.
As you can see, under the Guardianship Process or the
Involuntary Commitment Process the doctor plays a very
integral and important role in protecting an individual
from being exploited, whether by a family member or
friend, or protecting an individual from harming
themselves or others.
37

38. Many times we tell clients if their loved one had cancer,
the involuntary commitment process is like applying a
Band-Aid to the cancer, whereas the guardianship process
is like applying chemotherapy.
Within the last 10-15 years, the Texas legislature enacted
statutes that allowed guardians to take more of an active
role with the involuntary commitment process.
Under Texas Probate Code § 767(b), Power and Duties of
Guardians of the Person,
“…a guardian has the power to personally transport the ward or to direct
the ward’s transport by emergency medical services or other means to an
inpatient mental health facility for a preliminary examination…”
38

39. Under Texas Probate Code § 770(b)(c), Care of Ward;
Commitment,
◦ (b) Except as provided by Subsection (c) or (d) of this section, a guardian may not voluntarily
admit an incapacitated person to a public or private in-patient psychiatric facility or to a
residential facility operated by the Texas Department of Mental Health and Mental Retardation
for care and treatment. If care and treatment in a psychiatric or a residential facility are
necessary, the person or the person's guardian may:
◦ (1) apply for services under Section 593.027 or 593.028, Health and Safety Code;
◦ (2) apply to a court to commit the person under Subtitle D, Title 7, Health and Safety Code
(Persons with Mental Retardation Act), Subtitle C, Title 7, Health and Safety Code (Texas Mental
Health Code),or Chapter 462, Health and Safety Code; or
◦ (3) transport the ward to an inpatient mental health facility for a preliminary examination in
accordance with Subchapters A and C, Chapter 573, Health and Safety Code.
◦ (c) A guardian of a person younger than 18 years of age may voluntarily admit an incapacitated
person to a public or private inpatient psychiatric facility for care and treatment.
◦ (d) A guardian of a person may voluntarily admit an incapacitated person to a residential care
facility for emergency care or respite care under Section 593.027 or 593.028, Health and Safety
Code.
39

40. Furthermore, under § 770A, Care of Ward; Commitment,
 (a) In this section, " psychoactive medication" has the meaning assigned
by Section 574.101, Health and Safety Code.
 (b) If a person under a protective custody order as provided by
Subchapter B, Chapter 574, Health and Safety Code, is a ward who is
not a minor, the guardian of the person of the ward may consent to
the administration of psychoactive medication as prescribed by the
ward's treating physician regardless of the ward's expressed
preferences regarding treatment with psychoactive medication.
40

41. Depending on the situation, in reality, there will be
instances where it will be more beneficial to get the
individual to the psychiatric facility to begin the
involuntary commitment process so that our client knows
their loved one is in a safe environment and being
evaluated by a doctor.
In this instance, we ask for the cooperation of the doctor
in completing the Doctor’s Letter so that we may institute
the guardianship proceedings that way a Guardian is in
place when the patient leaves the hospital.
With everyone’s cooperation, we hope to ensure the
safety of the patient when they are released from the
hospital.
41

42. In the other instance, if we see an individual is being
exploited by a family member, caretaker or friend, we will
begin the Guardianship process.
Once in place, if the ward is in need of psychiatric help,
the Guardian can then transport the ward to the
psychiatric facility for a preliminary evaluation and possibly
the beginning of the involuntary commitment process if
the Ward meets the criteria.
42

43. As stated earlier in the presentation, one of the most
important reasons it may become necessary to couple a
guardianship with the involuntary commitment process is
for the Guardian to have the authority, even without the
consent of the patient, to speak with the doctor and care
managers.
It is with this communication that the Guardian can
ensure the patient has the support system in place after
discharge from the hospital.
It also ensures that the doctor and care managers have
the necessary information and history to act in the best
interest of the patient in understanding the patient’s illness
and medications and what works and what doesn’t.
43

44. We have discussed the Guardianship Process.
We have discussed the Involuntary Commitment Process.
We have discussed how the Guardianship Process and
Involuntary Commitment Process can work together.
Now we will discuss the alternatives to the Guardianship
Process.
44

45. Alternatives to Guardianship
Managing your Affairs During Disability/Incapacity
 Estate Planning does not only Durable Power of Attorney
encompass death-time •Names individuals to make your business and
financial decisions for you in the event of
planning, but also disability or incapacity or disability.
incapacity during life. Medical Power of Attorney
 It is important to have the •Names individuals to make your medical and
following documents: health care decisions for you in the event of
incapacity or disability.
Directive to Physicians
 Durable Power of Attorney •Declares your wishes with respect to life-
prolonging treatments and procedures.
 Medical Power of Attorney
 Directive to Physicians HIPAA Authorization
•Permits you to name individuals to have access to
 HIPAA Authorization your medical information and records.
 Declaration of Guardian Declaration of Guardian
•Names individuals who will be the guardian of
your person and your estate in the event of
incapacity.
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46. Presentation written by:
Lori Ashmore Peters
The Ashmore Law Firm
3636 Maple Avenue
Dallas, Texas 75219
214-559-7202
www.ashmorelaw.com
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47. KEEP UP WITH US ON THE WEB!
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YouTube.com/AshmoreLaw Use your smart phone
 ESTATE PLANNING BLOG QR app to scan the
QR code above.
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www.ashmorelaw.com
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48. “This material is a publication of The Ashmore Law Firm, P.C. and should not
be construed as offering legal advice. This material is not a privileged
communication and does not create a lawyer-client relationship.
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