How Does Guardianship Affect an Elder’s Medical Autonomy?

 Posted on September 20, 2024 in Elder Law

When an elderly person loses the capacity to make certain decisions, the law sometimes allows a guardian to make them on the person’s behalf. Guardianship can be a great solution for elders who suffer from dementia, illness, aging, or general cognitive decline. It can help preserve an elderly person’s assets and well-being, even after incapacitation.

In certain cases, guardianship can affect an elder’s medical autonomy. This article will discuss what guardianship is, the different types of guardianship, and how it can affect an elderly person’s ability to make medical decisions. For more details or any questions regarding guardianship or elder care, contact a Texas estate planning attorney.

What Is Guardianship?

Guardianship allows an individual or agency (the guardian) to make decisions on behalf of someone else (the ward). The difference between this and a power of attorney is that a guardian is appointed by the court while an agent is granted power of attorney by the principal. Most guardians are relatives of their wards, and courts generally prefer to appoint family members if it is in the ward’s best interest.

There are two types of guardianship in Texas:

• Guardianship of the person: This gives the guardian the power to make personal decisions on behalf of the ward.
• Guardianship of the estate: This gives the guardian the authority to make financial decisions for the ward.

Within each of these, there are two types of scopes:

• Plenary or full guardianship: The guardian has full decision-making power over the ward, who is stripped of his or her rights. The guardian can decide where the ward lives, where the ward can travel, what medical care the ward receives, and more.
• Partial guardianship: In this type of guardianship, the guardian has the authority to make only certain decisions about the ward or his or her estate.

It is important to note that guardians are monitored by the court to make sure they are serving their wards responsibly and not engaging in elder abuse.

How Does Guardianship Affect an Elder’s Medical Autonomy?

When a ward is placed under plenary guardianship of the person, he or she has no medical autonomy. The guardian can make decisions about what medications are administered to the ward, what surgeries the ward receives, provisions for end-of-life care, and more.

If only the ward’s estate is placed under guardianship, the ward can retain his or her medical autonomy. The same is true if the ward is placed under partial guardianship of the person and the guardianship is for non-medical decisions.

Can a Living Will Protect an Elder’s Medical Autonomy?

There is a way in which even full guardianship of the person cannot violate the ward’s wishes concerning medical care, and that is if the ward had previously made a living will. A living will is a legal document that contains a person’s preferences for medical care in the event of incapacitation. If the ward has a living will, it must be honored.

Contact a San Antonio, TX Guardianship Attorney

Guardianship is a delicate process that should protect the ward’s dignity and best interests. That is why it should be handled by a skilled San Antonio, TX estate planning lawyer. At The Law Office of Ryan C. Moe, PLLC, we are experienced in all aspects of estate planning law, including elder law and guardianships. Speak with an excellent attorney by calling 210-861-6000 today.