Arlington, TX asked in Estate Planning and Elder Law for Texas

Q: How does an incompetency declaration affect the patient-phycian relationship?

We already set up medical appointments and accompany our dad to his appointments.

He's signed documents allowing us to have access to his medical records.

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2 Lawyer Answers
Terry Lynn Garrett
Terry Lynn Garrett
PREMIUM
Answered
  • Estate Planning Lawyer
  • Austin, TX
  • Licensed in Texas

A: How would you feel if someone you trusted with the most intimate details of your life declared you mentally incompetent, no longer an adult who should be allowed to make your own decisions? Would you continue to share everything with that person? If that person was your physician, would you prefer a different doctor?

Kathy Elizabeth Roux
Kathy Elizabeth Roux
Answered
  • Estate Planning Lawyer
  • Grapevine, TX
  • Licensed in Texas

A: What you refer to in your question as an incompetency declaration is a guardianship proceeding under Texas law. An application must be filed in the probate court requesting that an individual (proposed ward) be declared incapacitated. If the court determines that a person is incapacitated, then it will issue an order so stating. Generally, such an order removes the legal right to make medical decisions from the individual (proposed ward), and gives that right to the appointed guardian. So the individual (proposed ward) no longer has the legal right to choose a physician or make medical decisions regarding their healthcare. The individual may still communicate with their physician regarding their medical condition, symptoms, and treatment, and ask questions. And, of course, the guardian may take the individual's wishes into account in making decisions for the individual. However, the guardian is required by law to act in the best interest of the individual.

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