Special Needs Parenting :: Medically Speaking: What Happens Without Guardianship? - by Carey Nelson Handley

We recently had a guardianship procedure in progress when the proposed Ward needed a tonsillectomy due to complications from infections which caused the young adult to become very ill. The guardianship was well underway and a court date had been set. The proposed Ward was 20 years old, an adult in the State of Texas.

The tonsillectomy had been scheduled but when the hospital contacted the parents a few days prior to the procedure, it was noted that the proposed Ward was over 18 years old which made him an adult in the State of Texas. When the hospital asked to speak to the young person having the procedure, it became apparent that the parents were making the decision about the procedure because the young adult did not have the capacity to make medical decisions. This is one of the reasons that the parents were in the process of filing for guardianship. Because the young adult was unable to directly consent to the procedure, nor understand the complexities of the illness or the procedure and it was not an emergency procedure, the hospital refused to allow the medical procedure to be done.

While guardianship can be obtained when the proposed Ward is over the age of majority, you can file for guardianship 6 months before his or her 18th birthday (the earliest one can file for guardianship), partly to avoid situations such as the one with our client. In fact, we counsel clients to meet with us 8 months before the child turns 18 in order to get the necessary documentation in place. It’s more than just entering a form with the court. It’s completing the application, meeting with your attorney and the proposed Ward’s Attorney Ad Litem, obtaining a physician’s certificate and several other steps prior to the actual court hearing. Approaching this in a timely manner will help avoid situations where non-emergency medical care is rejected due to the young adult’s lack of comprehension of a given situation. If, during the time that something like an operation or other medical procedure is needed, your attorney should be made aware as soon as possible so coordination with the Attorney Ad Litem can occur and the court can be contacted to expedite the procedure.

In the above client case, we reached out directly to the court as soon as the parents contacted us for assistance. In this instance, we were able to get the guardianship hearing expedited but that is not always possible. Keep in mind that, although this situation related to a young adult with Special Needs, it can also be applicable to an elder person who can no longer make medical decisions. Full or partial guardianship or Alternatives to Guardianship may, in some cases, be the only way to assure that loved ones get proper medical care or financial protection.

Contact The Handley Law Office at 281.703.3616 for more information on how Guardianship or Alternatives to Guardianship may be the best solution for someone you care about and want to protect.

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