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CMEs and Guardianship in Texas

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Introduction

This guide provides information about Certificates of Medical Examination (CME) in Texas and the need to evaluate supports and services that allow for less restrictive alternatives to guardianship. If you are a medical examiner—a physician, psychiatrist, or psychologist—who provides Certificates of Medical Examination for guardianship cases,[1] this resource explains options that the law requires to be considered so people with disabilities can retain their civil rights and maximize their independence.

Texas Law Requires Guardianships to Maximize Independence

Guardianships are often sought by well-intentioned people for individuals who have a disability and who may need some assistance to remain safe. Unfortunately, guardianship is also a severely restrictive intervention that strips an individual with a disability of their civil rights.

This is why Texas law emphasizes the need to “encourage the development or maintenance of maximum self-reliance and independence” when evaluating guardianships.[2] This is also why the Texas legislature has enacted several provisions to ensure less restrictive interventions are available to protect the individual while maintaining their autonomy. Consideration of less restrictive alternatives to guardianship is mandatory when determining whether an individual needs a new or continued guardianship.

Throughout every step of the guardianship process, all involved individuals—including professionals completing certificates of medical examination—are required by state statute to evaluate the effectiveness of available supports and services that may alleviate the need for a guardianship.

This guide is designed to provide basic information on supports and services and on when Texas law requires the consideration of such services as a means for mitigating the need for a full guardianship, or even the need for a guardianship at all.

Texas Law Requires Capacity to Be Considered With Supports and Services, Not Without

The Estates Code defines an incapacitated person as “an adult who, because of a mental condition, is substantially unable to provide” for their basic needs.[3] But importantly, this determination is not whether the person has capacity in a vacuum, but rather, whether the person has “sufficient capacity with supports and services.”[4] Supports and services that can negate or at least mitigate the need for a guardianship are “formal and informal resources and assistance that enable an individual to meet the individual’s need for food, clothing, or shelter; care for the individual’s physical or mental health; manage the individual’s financial affairs; or make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.”[5]

Medical Examiners Must Consider Supports and Services When Providing CMEs

Whether a guardianship is being initiated or whether the rights of a person in a guardianship are being restored, the courts, attorneys, applicants, investigators, and medical examiners must all consider whether the person has sufficient capacity with supports and services.

A CME is one piece of evidence the court will review when determining whether an individual has sufficient capacity with supports and services. Courts require a physician’s letter or CME at two different stages of the guardianship process: when an application to begin a guardianship has been filed,[6] and when an individual in a guardianship is seeking to restore their rights and modify or terminate their guardianship.[7] Texas law says a CME must contain the following statements about supports and services:

  • Whether the person with a disability has the ability to administer to daily life activities with and without supports and services;[8]
  • Whether the person with disabilities would benefit from supports and services that allow the person to live in the least restrictive setting;[9]
  • Whether specific powers or duties of the guardian should be limited when the person receives supports and services, if a physician states a guardianship is necessary;[10] and
  • Whether the individual under a guardianship who is trying to restore their rights has the capacity, or sufficient capacity with supports and services, to provide for their basic needs.[11]

Usually, the form provided to medical examiners will have space for the examiner to include notes about what supports and services would be necessary to negate the need for a guardian in all or one decision-making area. If there is not enough space on the form for you to address the person’s capacity with supports, then you should also include a supplemental letter to the court or requestor with your determination to ensure you satisfy the requirements of Texas law regarding consideration of supports and services.

Types of Supports and Services

There are innumerable supports and services available to an individual with a disability. Some supports may be provided informally by family, friends, or trusted neighbors. Other services may be formal and provided through public or private agencies. The following examples are not exhaustive and are included only to provide examples of possible supports you should consider in rendering your opinion regarding a person’s capacity.

One formal alternative to guardianship is a Supported Decision-Making Agreement (SDMA). The Texas Legislature first enacted the Supported Decision-Making Agreement Act in 2015.[12] The purpose of the SDMA Act is “to recognize a less restrictive alternative to guardianship for adults with disabilities who need assistance with decisions regarding daily living but who are not considered incapacitated persons for the purposes of establishing a guardianship.”[13]

An SDMA is a voluntary agreement between a person with a disability and their chosen supporter. The person may authorize their supporter to provide supported decision-making by helping the person understand their options, responsibilities, and consequences of a particular decision.[14] A supporter may also help the person with a disability access their records or other information that is necessary for the person to make an informed life decision including medical, psychological financial, educational, or treatment records.[15] The supporter may also help the person with a disability communicate the person’s decision, but does not make the decision for the person.[16]

Texas law also says alternatives to guardianship can include the following supports and services:[17]

  • Medical Power of Attorney
  • Durable Power of Attorney
  • Declaration for Mental Health Treatment
  • Representative Payee
  • Joint Bank Account
  • Management or Special Needs Trusts
  • Designation of Guardian Before the Need Arises
  • Alternate Forms of Decision-Making Based on Person-Centered Planning

Other supports and services may be provided through agencies or organizations such as:

  • The person’s Local Mental Health Authority (LMHA)
  • The Texas Workforce Commission
  • The Arc of Texas
  • SNAP and other public benefits
  • The person’s Local Intellectual and Developmental Disability Authority (LIDDA)
  • The Home and Community-Based Services (HCS) Medicaid waiver program, which use person-centered planning
  • Other Medicaid waivers like CLASS and Texas Home Living
  • The person’s local Center for Independent Living
  • ABLE account

Some geographic areas may have service providers that are only available where the person lives, so it’s important to know what’s available in the area. Don’t forget, informal support provided by family or friends can also be an alternative to guardianship.

Inquiring about both formal and informal supports available to assist a person to make medical, financial, and other life decisions ensures not only that the person maintains their independence and is subject to the least-restrictive guardianship necessary, but also ensures that you, as a medical professional, fulfill your obligation under Texas law.

Additional Resources

For additional resources regarding less restrictive alternatives to guardianship, the importance of supports and services, and SDMAs, you can:

Questions

Have more questions about supports and services available to persons with disabilities? Disability Rights Texas may be able to help. Our intake line is 1.800.252.9108 or you can apply for DRTx services online.

 

Endnotes
[1]Tex. Estates Code §§ 1101.103(a)(1)-(2), 1202.152(a)(1)-(2).
[2]Id. § 1001.001(b).
[3]Id. § 1002.017(2).
[4]See id. § 1202.001(b)(2) (a guardianship must be closed and a person’s rights restored when the court finds the person has “full capacity, or sufficient capacity with supports and services, to care for himself or herself”) (emphasis added); see also id. § 1202.152(b)(1) (a certificate of medical examination must state whether the person has capacity or sufficient capacity with supports and services to provide for their basic needs).
[5]Id. § 1002.031.
[6]Id. § 1101.103(a).
[7]Id. § 1202.152(a).
[8]Id. § 1101.103(b)(4)(E).
[9]Id. § 1101.103(b)(6).
[10]Id. § 1101.103(b)(6-a).
[11]Id. §§ 1202.152(a), (b)(1).
[12]Texas Estates Code, Subtitle I, Chapter 1357.
[13]Id. § 1357.003.
[14]Id. §1357.051.
[15]Id. § 1357.051(2).
[16]Id. §§ 1357.051(1), (4).
[17]Id. § 1002.0015.

 

Updated: August 10, 2023
Publication Code: SDM13

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Disclaimer: Disability Rights Texas strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate.

The handout is not intended to and does not replace an attorney’s advice or assistance based on your particular situation.

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