in the Guardianship of A.E., an Incapacitated Person
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Opinion
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00189-CV
IN THE GUARDIANSHIP OF A.E., AN INCAPACITATED PERSON
----------
FROM PROBATE COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2016-GD00368-2
OPINION
This is an appeal from the denial of an uncontested guardianship
application. In nine issues, Appellants H.E. and P.E. challenge the probate
court’s denial of their application to be appointed guardians of the person of their
intellectually-disabled adult daughter, A.E. Because we hold the probate court
abused its discretion in denying the guardianship, we reverse and remand. BACKGROUND
A.E. has a moderate intellectual disability and moderate encephalopathies.
She has an IQ between 50 and 55, and she lives with her mother, H.E., and her
father, P.E. Shortly before her eighteenth birthday, A.E.’s parents filed an
application for guardianship of her person. See Tex. Est. Code Ann.
§ 1103.001 (West 2014) (providing that a person may file an application for a
minor who, because of an incapacity, will require a guardianship after the
proposed ward is no longer a minor). A.E. turned eighteen two weeks before the
hearing on the application.
The guardianship was not contested by A.E.’s court-appointed attorney ad
litem. At the hearing, A.E.’s parents testified about the need for a guardianship
and introduced a certificate of medical examination from A.E.’s treating physician
stating that she may decline to treat A.E. in the future due to A.E.’s inability to
give informed consent. The court investigator testified that she did not believe a
guardianship was necessary because supports and services and alternatives to
guardianship were sufficient, but she conceded that she would change her mind
on that point if A.E.’s doctor refused to treat A.E.
At the conclusion of the hearing, the probate court denied the guardianship
application, finding that A.E.’s parents had not shown by clear and convincing
evidence that supports and services and alternatives to guardianship were not
feasible. The probate court subsequently filed findings of fact and conclusions of
law, including findings that A.E. had not experienced any problems in receiving
2 medical treatment since becoming an adult (that is, in the two weeks between
her eighteenth birthday and the hearing) and that A.E. is agreeable to allowing
her parents to assist her in making medical treatment decisions. The probate
court further concluded that it is not in A.E.’s best interest to take away her rights
and appoint a guardian; that A.E.’s rights do not need to be protected by the
appointment of a guardian; and that all of A.E.’s needs are being met.
Parents, H.E. and P.E., now appeal.
STANDARD OF REVIEW
We review a probate court’s guardianship determinations for an abuse of
discretion. In re Guardianship of Alabraba, 341 S.W.3d 577, 579 (Tex. App.—
Amarillo 2011, no pet.); In re Guardianship of Parker, No. 2-06-217-CV,
2007 WL 4216255, at *4 (Tex. App.—Fort Worth Nov. 29, 2007, no pet.) (mem.
op.). A trial court abuses its discretion if the court acts without reference to any
guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,
838–39 (Tex. 2004). A trial court also abuses its discretion by ruling without
supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex.
2012). But an abuse of discretion does not occur when the trial court bases its
decision on conflicting evidence and some evidence of substantive and probative
character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92,
97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op.
on reh’g).
3 In guardianship proceedings, legal and factual sufficiency are not
independent, reversible grounds of error but are factors to consider in assessing
whether the trial court abused its discretion. In re Guardianship of Erickson,
208 S.W.3d 737, 743 (Tex. App.—Texarkana 2006, no pet.); see In re J.P.C.,
261 S.W.3d 334, 336 (Tex. App.—Fort Worth 2008, no pet.) (noting that in
appropriate cases, legal and factual sufficiency are relevant factors in assessing
whether the trial court abused its discretion). “We view the evidence in the light
most favorable to the probate court’s decision, and an abuse of discretion does
not occur when the court’s decision is based on conflicting evidence.” In re
Guardianship of Laroe, No. 05-15-01006-CV, 2017 WL 511156, at *5 (Tex.
App.—Dallas Feb. 8, 2017, pet. denied) (mem. op.).
DISCUSSION
H.E. and P.E. argue that the probate court abused its discretion by: (1) not
finding that A.E. is totally incapacitated; (2) not finding it is in A.E.’s best interest
to have H.E. and P.E. appointed as her guardians of the person; (3) not finding
that A.E.’s rights or property will be protected by the appointment of a guardian;
(4) not finding that alternatives to guardianship are infeasible; (5) not finding that
supports and services available to A.E. are infeasible; (6) not finding that H.E.
and P.E. are eligible to act as guardians and are entitled to be appointed; (7) not
finding that there is evidence of A.E.’s incapacity by recurring acts or
occurrences in the preceding six months that are not isolated instances of
negligence or bad judgment; (8) creating a new standard as to whether there is a
4 necessity for a guardianship; and (9) denying the guardianship application when
it met all of the factual and legal requirements and was not otherwise contested.
We discuss the evidence and the law relating to these issues together.
I. Findings Required Before Appointment of a Guardian
“When interpreting a statute, we look first and foremost to its text.” United
States v. Alvarez-Sanchez, 511 U.S. 350, 356, 114 S. Ct. 1599, 1603 (1994)
(Thomas, J.). Under the Estates Code, the probate court could not appoint a
guardian of the person for A.E. unless the court found by clear and convincing
evidence that:
(A) [A.E.] is an incapacitated person;
(B) it is in [A.E.’s] best interest to have the court appoint a person as [her] guardian;
(C) [A.E.’s] rights . . . will be protected by the appointment of a guardian;
(D) alternatives to guardianship that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible; and
(E) supports and services available to [A.E.] that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible.
See Tex. Est. Code Ann.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00189-CV
IN THE GUARDIANSHIP OF A.E., AN INCAPACITATED PERSON
----------
FROM PROBATE COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2016-GD00368-2
OPINION
This is an appeal from the denial of an uncontested guardianship
application. In nine issues, Appellants H.E. and P.E. challenge the probate
court’s denial of their application to be appointed guardians of the person of their
intellectually-disabled adult daughter, A.E. Because we hold the probate court
abused its discretion in denying the guardianship, we reverse and remand. BACKGROUND
A.E. has a moderate intellectual disability and moderate encephalopathies.
She has an IQ between 50 and 55, and she lives with her mother, H.E., and her
father, P.E. Shortly before her eighteenth birthday, A.E.’s parents filed an
application for guardianship of her person. See Tex. Est. Code Ann.
§ 1103.001 (West 2014) (providing that a person may file an application for a
minor who, because of an incapacity, will require a guardianship after the
proposed ward is no longer a minor). A.E. turned eighteen two weeks before the
hearing on the application.
The guardianship was not contested by A.E.’s court-appointed attorney ad
litem. At the hearing, A.E.’s parents testified about the need for a guardianship
and introduced a certificate of medical examination from A.E.’s treating physician
stating that she may decline to treat A.E. in the future due to A.E.’s inability to
give informed consent. The court investigator testified that she did not believe a
guardianship was necessary because supports and services and alternatives to
guardianship were sufficient, but she conceded that she would change her mind
on that point if A.E.’s doctor refused to treat A.E.
At the conclusion of the hearing, the probate court denied the guardianship
application, finding that A.E.’s parents had not shown by clear and convincing
evidence that supports and services and alternatives to guardianship were not
feasible. The probate court subsequently filed findings of fact and conclusions of
law, including findings that A.E. had not experienced any problems in receiving
2 medical treatment since becoming an adult (that is, in the two weeks between
her eighteenth birthday and the hearing) and that A.E. is agreeable to allowing
her parents to assist her in making medical treatment decisions. The probate
court further concluded that it is not in A.E.’s best interest to take away her rights
and appoint a guardian; that A.E.’s rights do not need to be protected by the
appointment of a guardian; and that all of A.E.’s needs are being met.
Parents, H.E. and P.E., now appeal.
STANDARD OF REVIEW
We review a probate court’s guardianship determinations for an abuse of
discretion. In re Guardianship of Alabraba, 341 S.W.3d 577, 579 (Tex. App.—
Amarillo 2011, no pet.); In re Guardianship of Parker, No. 2-06-217-CV,
2007 WL 4216255, at *4 (Tex. App.—Fort Worth Nov. 29, 2007, no pet.) (mem.
op.). A trial court abuses its discretion if the court acts without reference to any
guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,
838–39 (Tex. 2004). A trial court also abuses its discretion by ruling without
supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex.
2012). But an abuse of discretion does not occur when the trial court bases its
decision on conflicting evidence and some evidence of substantive and probative
character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92,
97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op.
on reh’g).
3 In guardianship proceedings, legal and factual sufficiency are not
independent, reversible grounds of error but are factors to consider in assessing
whether the trial court abused its discretion. In re Guardianship of Erickson,
208 S.W.3d 737, 743 (Tex. App.—Texarkana 2006, no pet.); see In re J.P.C.,
261 S.W.3d 334, 336 (Tex. App.—Fort Worth 2008, no pet.) (noting that in
appropriate cases, legal and factual sufficiency are relevant factors in assessing
whether the trial court abused its discretion). “We view the evidence in the light
most favorable to the probate court’s decision, and an abuse of discretion does
not occur when the court’s decision is based on conflicting evidence.” In re
Guardianship of Laroe, No. 05-15-01006-CV, 2017 WL 511156, at *5 (Tex.
App.—Dallas Feb. 8, 2017, pet. denied) (mem. op.).
DISCUSSION
H.E. and P.E. argue that the probate court abused its discretion by: (1) not
finding that A.E. is totally incapacitated; (2) not finding it is in A.E.’s best interest
to have H.E. and P.E. appointed as her guardians of the person; (3) not finding
that A.E.’s rights or property will be protected by the appointment of a guardian;
(4) not finding that alternatives to guardianship are infeasible; (5) not finding that
supports and services available to A.E. are infeasible; (6) not finding that H.E.
and P.E. are eligible to act as guardians and are entitled to be appointed; (7) not
finding that there is evidence of A.E.’s incapacity by recurring acts or
occurrences in the preceding six months that are not isolated instances of
negligence or bad judgment; (8) creating a new standard as to whether there is a
4 necessity for a guardianship; and (9) denying the guardianship application when
it met all of the factual and legal requirements and was not otherwise contested.
We discuss the evidence and the law relating to these issues together.
I. Findings Required Before Appointment of a Guardian
“When interpreting a statute, we look first and foremost to its text.” United
States v. Alvarez-Sanchez, 511 U.S. 350, 356, 114 S. Ct. 1599, 1603 (1994)
(Thomas, J.). Under the Estates Code, the probate court could not appoint a
guardian of the person for A.E. unless the court found by clear and convincing
evidence that:
(A) [A.E.] is an incapacitated person;
(B) it is in [A.E.’s] best interest to have the court appoint a person as [her] guardian;
(C) [A.E.’s] rights . . . will be protected by the appointment of a guardian;
(D) alternatives to guardianship that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible; and
(E) supports and services available to [A.E.] that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible.
See Tex. Est. Code Ann. § 1101.101(a)(1) (West Supp. 2017). 1
1 Before a 2015 legislative amendment, this section did not require a court to make the findings in (D) and (E) before appointing a guardian. See Act of May 18, 2015, 84th Leg., R.S., ch. 214, § 8, 2015 Tex. Sess. Law Serv. 1290, 1293– 94. The number of guardianship cases had risen significantly, and the bill authors intended for the new subsections to ensure that the guardianship system is not overburdened. Senate Research Center, Bill Analysis, Tex. H.B. 39, 84th Leg., R.S. (2015).
5 The probate court would be further required to find by a preponderance of
the evidence that A.E.’s parents are eligible for and entitled to the appointment
and that A.E. either (i) is totally without capacity to care for herself and to
manage her property, or (ii) lacks the capacity to do some, but not all, of the
tasks necessary to care for herself or to manage her property. See id.
§ 1101.101(a)(2)(B), (D). 2 Any determination of A.E.’s incapacity would have to
be “evidenced by recurring acts or occurrences in the preceding six months and
not by isolated instances of negligence or bad judgment.” See id.
§ 1101.102 (West 2014).
II. The Evidence Before the Probate Court
H.E. and P.E.’s evidence included their own testimony, a certificate of
medical examination and affidavit from A.E.’s treating physician, and the court
investigator’s testimony. The probate court also had before it the court
investigator’s report and a brief report from A.E.’s attorney ad litem.
A. Testimony of A.E.’s Parents
A.E.’s mother, H.E., testified that A.E.’s intellectual disability is one that will
not change. A.E. has a tendency to agree with whatever is said to her yet would
not necessarily understand what was being asked of her or the significance of
saying yes to a question. H.E. stated that A.E. is not capable of making medical
2 H.E. and P.E. were also required to show by a preponderance of the evidence that the probate court has venue of the case. See Tex. Est. Code Ann. § 1101.101(a)(2)(A). The probate court found that it had venue.
6 decisions even with help, A.E. does not have the capacity to execute a power of
attorney or supported decision-making agreement, and A.E. would not
understand such a document even if it were explained to her. Also, A.E. would
not be able to understand a consent form given to her by a doctor.
H.E. further testified that A.E.’s school has a program for special needs
children, that she can empty the dishwasher, and that she is learning to fold
towels at a volunteer job. At her volunteer job, A.E. also takes chairs off tables at
a restaurant and sets out salt and pepper containers on the tables. If her clothes
are laid out for her, she can partially dress herself. A.E. had not yet been denied
medical treatment, but she had not been to the doctor in the two weeks since she
had turned eighteen. P.E., A.E.’s father, testified that he agreed with all of his
wife’s testimony.
B. Testimony and Documentary Evidence from A.E.’s Physician
If an application for guardianship is based on a proposed ward’s alleged
incapacity, the applicant must provide the court with a letter or certification that
(1) complies with Estates Code section 1101.103 and (2) shows that a physician
or psychologist has examined the proposed ward. Id. § 1101.104 (West Supp.
2017). Section 1101.103 provides that the letter or certification must include a
description of the nature, degree, and severity of the proposed ward’s incapacity
and be provided by a Texas-licensed physician who has examined the proposed
ward no more than 120 days before the date of the application’s filing. Id.
7 § 1101.103 (West 2014) (specifying certain functions and abilities of the
proposed ward that the letter or certificate must address).
A.E.’s treating physician provided the required doctor’s certificate, which
A.E.’s parents produced at the hearing. In the certificate, A.E.’s doctor stated
that A.E. has moderate encephalopathies and a moderate intellectual disability,
with no possibility for improvement. According to her doctor, A.E. is unable to
initiate and make responsible decisions regarding:
• complex business, managerial, or financial decisions;
• a personal bank account;
• safely operating a motor vehicle;
• voting in a public election;
• determining her own residence;
• administering her own medication;
• attending to basic activities of daily living without supports and services;
• marriage;
• attending to instrumental activities of daily living (like shopping, cooking, and cleaning); and
• consenting to medical, dental, or psychological treatment.
The doctor indicated that A.E. would not be able to understand the guardianship
hearing. While the doctor found that, with supports and services, A.E. can make
responsible decisions about basic daily activities like bathing, grooming,
dressing, walking, and toileting, she further stated that she believed A.E. is
8 unable to handle making any other decisions. The doctor concluded that A.E. is
totally incapacitated. The least restrictive placement the doctor considered
appropriate for A.E. is with A.E.’s family. 3
In a separate affidavit, the doctor stated that, in her medical opinion, A.E.
is totally incapacitated. She further swore to her belief 4 that A.E. is unable to
adequately handle any decisions for herself even with assistance and that A.E.
does not have the capacity to execute a power of attorney or a supported
decision-making agreement. See Decker v. Decker, 192 S.W.3d 648, 652 (Tex.
App.—Fort Worth 2006, no pet.) (“The term ‘mental capacity’ means that the
grantor at the time of the execution of the [instrument] must have had sufficient
mind and memory to understand the nature and effect of his act.”). Finally, A.E.’s
3 The doctor used a Physician’s Certificate of Medical Examination form available on the probate court’s website. The doctor indicated her opinion about placement by checking from the following list of options: “Nursing home level of care,” “Assisted Living Facility,” “Group Home,” “Memory care unit,” “Own Home or with family,” and “Other.” [Capitalization in original.] See https:// access.tarrantcounty.com/content/dam/main/probate-courts/probate-court-1/ Documents/CME.pdf (last visited June 11, 2018). 4 The doctor began a number of the assertions in her affidavit based on a stated belief about A.E.’s capacity. She did not state that these beliefs were based on her medical expertise. However, to the extent her statements needed to be based on reasonable medical probability, from the context of the statements, they were her opinions derived from her examinations and treatment of A.E. See Stodghill v. Tex. Emp. Ins. Ass’n, 582 S.W.2d 102, 105 (Tex. 1979) (stating that a medical expert need not use the exact magic words “reasonable medical probability”). In any event, A.E.’s attorney ad litem did not object to the affidavit.
9 doctor swore that she may withhold treatment from A.E. because A.E. cannot
provide informed consent and has no legal guardian to consent on her behalf.
C. The Court Investigator’s Initial Report
In the court investigator’s initial report, admitted as evidence at the
hearing, the investigator noted that:
• H.E. reported that A.E. reads and writes at a first-grade level, has limited fine motor skills, and functions socially like a ten- or twelve- year-old;
• A.E.’s conversation was limited and difficult to understand;
• A.E. used a phone app to help communicate using pictures;
• A.E. can use her smart phone to text her mother and send her pictures;
• A.E. can follow three-step directions;
• A.E.’s “[l]anguage/speech impediment and fine motor skills create [a] barrier to further independence”;
• A.E. could not name her medications and did not know who her physician was;
• A.E. could, with the assistance of her parents, make decisions regarding her residence, voting, operating a motor vehicle, and marriage;
• Alternatives to guardianship for A.E. included having a representative payee for public benefits; a joint bank account; a special needs trust; “alternative forms of decision making based on person-centered planning”; and having a surrogate decision-maker as described in Health and Safety Code section 166.039, Tex. Health & Safety Code Ann. § 166.039 (West 2017); and
• Alternatives to guardianship for A.E. did not include a medical power of attorney, a durable power of attorney, or a declaration for mental health treatment under Civil Practice and Remedies Code chapter 137, Tex. Civ. Prac. & Rem. Code Ann. § 137.002 (West 2011)
10 (providing that an adult who is not incapacitated may execute a declaration for mental health treatment).
As for the need for a guardianship, the investigator stated in the report that
A.E. is incapacitated and does not understand the concept of guardianship.
Nevertheless, the investigator concluded in the report that supports and services
were sufficient and that alternatives to guardianship were feasible, and the
investigator recommended that A.E. did not need a guardian.
D. The Court Investigator’s Testimony
At the hearing, the court investigator testified that despite A.E.’s doctor’s
statement that A.E. cannot handle decisions even with assistance, she believed
A.E. could make decisions with her parents’ support; “[s]he lives at home with her
parents who assist her with decision-making and with that assistance, she’s able
to function and make decisions in her life.” The investigator acknowledged,
however, that A.E. does not understand the consequences of her decisions and
does not have the capacity to sign a power of attorney.
The investigator further acknowledged that A.E. cannot provide informed
consent to a doctor. When asked how A.E. could get treatment from a doctor
without a guardian or the ability to consent to treatment, the investigator stated,
“[t]hat would be between the doctor and the family and [A.E.].” The investigator
agreed, however, that in light of A.E.’s doctor’s statement that she may withhold
treatment from A.E., a guardianship would probably be necessary “if the doctor
would not be able to see her with her parents accompanying her.”
11 The investigator answered “possibly” when asked if someone with a
tendency to answer “yes” to please people could be subject to abuse or
exploitation, given that her parents were not with her all the time. The
investigator asked A.E. questions when they met but testified that she did not
believe A.E. understood the questions. The investigator believed that A.E. would
not be able to give an opinion about her care situation, about voting, or about her
ability to get married. Although the investigator stated in her report that A.E.
could make decisions about voting, driving, and marriage with her parents’
support and assistance, she testified at trial that she did not believe A.E. would
understand how to make those decisions and essentially acknowledged that
A.E.’s parents would be making those decisions for her.
The investigator explained why she believed that supports and services
were sufficient and that alternatives to guardianship were feasible. She testified,
Because when I met with the family, we talked about what kind of problems they were running into. She’s only been 18 for two weeks and there weren’t any problems that they had run into the day I was out there and met with them.
And so there was nothing I could indicate was a reason that they needed to be the legal guardian. As her parents, they were able to take care of getting her to the doctor, they provide food clothing and shelter, they’re interacting with the school. She has one more year of high school.
I just didn’t see anything currently that would require guardianship. And considering that it’s a last resort, I just didn’t see that at this time it was necessary.
12 In other words, the investigator based her recommendation against
guardianship on the fact that in the two weeks since A.E. had turned eighteen,
her parents had not yet encountered a problem with getting her medical
treatment or protecting her rights, rather than on any foreseeable difficulties they
could face in the future. On redirect examination, the investigator testified that
“[w]e’re looking to see if there’s something that parents haven’t been able to
achieve or accomplish for the person that’s living with them, their young adult
child, before a guardianship is necessary,” and “[i]f the doctor has, since I’ve met
with the family, said that [she] would no longer treat [A.E.], then that[]—would be
something to be considered.” Importantly, the investigator later stated that if A.E.
would not be able to see her doctor, she would conclude that supports and
services were not feasible and that a guardianship would be necessary.
E. A.E.’s Unsworn Statements and the Ad Litem’s Report
A.E.’s attorney ad litem stated in her report filed in the probate court that “it
does not appear that there are any less restrictive means that would better suit
this situation,” and “[a] full guardianship is necessary and [A.E.] is amenable to
that continued care.”
The attorney ad litem called A.E. to answer some questions, but A.E. was
not sworn, nor was any attempt made to determine whether A.E. had the
capacity to understand the oath of a witness. 5 However, the attorney ad litem
5 The court is somewhat concerned that no attempt was made to determine whether A.E. had the capacity to be sworn and to give testimony before she was
13 called A.E. so that, in lieu of giving her report at the hearing, she could “show the
Court that, you know, [A.E.] has really pretty minimal understanding of the
concept of guardianship as a whole.” The attorney ad litem asked A.E. if her
parents helped her a lot, to which she shook her head in what appeared to be a
“yes” motion. She gave the same response to all of the questions asked of her,
including if she remembered talking to the attorney ad litem about driving a car, if
she thought she would be able to drive a car, if she needed a lot of help, if she
would like to vote in an election, and if she liked her doctor and would be sad if
she had to go to a different doctor. The attorney ad litem informed the court that
she did not oppose the guardianship because, while A.E. did not understand
guardianships, A.E. “was able to tell [the attorney ad litem] that she thinks she
likes the help, she wants the help to continue.”
subjected to questioning. The common law has long recognized that “testimony” in the context of a legal proceeding is fundamentally defined as “a statement made by a witness under oath.” Cauble v. Key, 256 S.W. 654, 655 (Tex. Civ. App.—Austin 1923, no writ) (citation omitted). Moreover, “the administration of the oath by a competent officer is a fundamental and essential requirement to give testimony its binding force,” and the Texas Constitution “clearly implies that such is a prerequisite to the giving of evidence.” Id. (citing Texas Const. art. 1, § 5). However, any error associated with the failure to swear A.E. as a witness is waived by the failure of any party to object at the guardianship hearing. See Trammel v. Mount, 4 S.W. 377, 379 (Tex. 1887) (“The appellants allowed the witness to give his testimony without being sworn, and thereby waived any objections to it on that account.”).
14 III. Clear and Convincing Evidence Demonstrated that the Guardianship is Necessary.
A. The Evidence Showed that A.E. is Totally Incapacitated, and No Evidence Supported a Contrary Finding.
The probate court found that A.E. is incapacitated as defined in the Estates
Code. Tex. Est. Code Ann. § 1002.017 (West 2014). H.E. and P.E. argue in
their first issue, however, that the probate court abused its discretion by failing to
find that A.E. is totally incapacitated. See id. § 1101.101(a)(2)(D). Relatedly, in
their seventh issue, they argue that the probate court abused its discretion in not
finding that there is clear and convincing evidence of A.E.’s incapacity by
recurring acts or occurrences in the preceding six months that are not isolated
instances of negligence or bad judgment. See id. § 1101.102.
Because the probate court found that A.E. is incapacitated, the court
therefore impliedly found that A.E. “is substantially unable to: (A) provide food,
clothing, or shelter for . . . herself; (B) care for [her] own physical health; or
(C) manage [her] own financial affairs.” Id. § 1002.017. The probate court did
not, however, make the express findings that would have been required by the
Estates Code before appointing a guardian regarding whether A.E. lacks the
capacity to do some, but not all, of the tasks necessary to care for herself or to
manage her property, or whether she is totally without capacity to care for herself
and her property. Id. § 1101.101. Despite the absence of any express findings
regarding total incapacity, all of the evidence at the hearing proved that A.E. has
no capacity to care for herself or her property.
15 First, A.E.’s treating physician’s certificate and affidavit provided evidence
that A.E. is totally incapacitated. A.E. does not have the capacity to understand
the nature or consequences of her actions and is unable to provide food,
clothing, or shelter for herself; care for her own physical health; or manage her
own financial affairs. She cannot attend to instrumental activities of daily living
like shopping, cooking, traveling, or cleaning. A.E. cannot consent to medical
treatment. She cannot make decisions regarding voting, determining her own
residence, or marriage. She does not know what medications she takes. A.E.
has a deficit in understanding and communicating; solving problems; reasoning
logically; grasping abstract aspects of her situation; interpreting idiomatic
expressions or proverbs; and breaking down complex tasks into simple steps and
carrying them out. Further, A.E.’s impairment with respect to these deficits does
not vary substantially in frequency, severity, or duration.
Second, A.E.’s parents testified that A.E. has a tendency to agree with
whatever is said to her without understanding what she is being asked. 6
6 In the probate court’s findings of fact, the court found that when questioned at the hearing, A.E. indicated a “yes” answer when she agreed with the questions by moving her head up and down and that she “did not move her head up and down when she disagreed with the questions to communicate ‘no’ and there is silence on the record (‘nonverbal response’) to these questions or a statement on the record that she was moving her head, but not in a particular direction.” But this finding is not supported by the record. The record indicates that A.E. answered “yes” with a head shake to all questions posed to her. (For one question—“Do you like the doctor you have right now?”—the record indicates she gave a nonverbal response. Nothing in the record indicates A.E. intended this as a “no”; all her responses were nonverbal. And to a clarifying follow-up question (“Would you be sad if you had to go to a different doctor? Do
16 Third, the court investigator testified that she believed that A.E. could make
decisions with her parents’ support, yet she acknowledged that A.E. does not
understand the consequences of her decisions and does not have the capacity to
sign a power of attorney and that her parents would more or less have to make
decisions for her. The investigator’s report indicated that A.E. does not know
who her doctor is or what medications she takes and did not understand the
questions the investigator asked her. The investigator recognized that A.E.
would not be able to give an opinion about her care situation, about voting, or
about her ability to get married and would not understand how to make those
decisions.
In summary, the uncontradicted evidence at the hearing—more than clear
and convincing, and certainly more than a preponderance, which is all the statute
requires—established that A.E. is totally without capacity to care for herself and
to manage her property. See id. § 1101.101(a)(2)(D). Indeed, no evidence
supported a contrary determination. As a result, the probate court abused its
discretion by not making such a finding. See id. Further, the evidence of
incapacity at trial was of “recurring acts or occurrences in the preceding six
months and not . . . isolated instances of negligence or bad judgment”—
specifically, undisputed clear and convincing evidence showed that A.E.’s
you want to stay with the same doctor?”), she gave a “yes” response like she had to all the previous questions.)
17 incapacity is the result of encephalopathies and a permanent intellectual
disability. See id. § 1101.102.
We sustain H.E. and P.E.’s first and seventh issues.
B. The Evidence Showed that Supports and Services Are Not Sufficient for A.E, and No Evidence Supported a Contrary Finding.
1. A.E. Cannot Make Personal Decisions, Even with Assistance.
In their fifth issue, H.E. and P.E. assert that the probate court abused its
discretion by not finding that supports and services available to A.E. that would
avoid the need for a guardian of the person had been considered and determined
not to be feasible. See id. § 1101.102(a)(1)(E). We agree.
“Supports and services” is defined in the Estates Code to mean:
available formal and informal resources and assistance that enable an individual to:
(1) meet the individual’s needs for food, clothing, or shelter;
(2) care for the individual’s physical or mental health;
(3) manage the individual’s financial affairs; or
(4) make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.
Id. § 1002.031 (West Supp. 2017). Importantly, under this definition, the Texas
Legislature did not include resources and assistance that enable another person
to make personal decisions for the individual regarding residence, voting,
operating a motor vehicle, and marriage; to manage the individual’s financial
affairs; to care for the individual’s physical and mental health; or to meet the
18 individual’s needs for food, clothing, or shelter. See id.; cf. Evans v. Jordan, 8 F.
Cas. 872, 873 (C.C. Va. 1813) (Marshall, J.), aff’d, 13 U.S. (9 Cranch) 199 (1815)
(“[In the legislative branch] is confided, without revision, the power of deciding on
the justice as well as wisdom of measures relative to subjects on which they
have the constitutional power to act. Wherever, then, their language admits of no
doubt, their plain and obvious intent must prevail.”).
All the evidence at the hearing established that no amount of resources
would enable A.E. to meet her own needs for food, clothing, or shelter; care for
her physical or mental health; manage her financial affairs; or make personal
decisions regarding residence, voting, operating a motor vehicle, and marriage.
See Tex. Est. Code Ann. § 1002.031. As previously noted, the doctor’s
certificate stated that A.E. is unable to make responsible decisions regarding a
bank account, driving, voting, determining her own residence, marriage,
administering her medication, attending to most of her daily living activities, or
consenting to treatment. The doctor stated in her affidavit that she believed A.E.
could not adequately handle any decisions by herself, even with assistance.
A.E.’s parents testified that she would not necessarily understand questions
asked of her or the significance of answering yes to a question but that she
nevertheless tends to answer yes to questions.
The court investigator further buttressed the parents’ testimony when she
testified that she did not ask A.E. if she liked getting help from her parents
because A.E. “really couldn’t answer that question, I didn’t feel like.” The
19 investigator testified that A.E. did not understand the questions the investigator
asked her and could not give an opinion about her preference for her care and
that A.E. would not be able to give an opinion about the matters addressed by
supports and services and would not understand how to make those decisions. 7
The clear and convincing evidence at the hearing established as a matter
of law that resources would not enable A.E. to meet her needs, care for her
health, manage her finances, or make the personal decisions prioritized by the
Estates Code. Her needs and health must be managed for her because she
cannot understand her options to make those decisions for herself, even when
they are explained to her. There was simply no evidence to the contrary at the
hearing. Likewise, A.E. cannot understand the options for, or the consequences
of, decisions regarding important personal matters like marriage, voting, and
choosing her place of residence, and there was no evidence to the contrary.
There is no question from the evidence that she cannot drive.
7 In an amicus brief, Cook Children’s Health Care System points out the flaw in the probate court’s findings regarding A.E.’s capacity to make decisions related to her healthcare. Despite the probate court’s finding that A.E. “is agreeable to allowing her parents to assist her in making medical treatment decisions,” A.E. does not have the requisite mental capacity to consent to allowing her parents to assist, and “[t]hat is the point of, and need for, the appointment of a guardian.” Moreover, the court investigator agreed that A.E. cannot give informed consent. We agree with Cook Children’s that A.E. must rely on someone “to make medical decisions for her, not just someone to ‘assist’ her in making a decision she cannot make in the first place.”
20 2. The Availability of Medicaid Waivers for A.E. Does Not Obviate the Need for a Guardianship.
Amicus Disability Rights Texas asserts in its brief that Texas has Medicaid
waivers for services for persons with intellectual and developmental disabilities
and for community living assistance and support services, and it contends that
these are examples of supports and services available to A.E. See 40 Tex.
Admin. Code §§ 9.154(a) (Tex. Dep’t of Aging & Disability Servs., Intellectual
Disability Servs.—Medicaid State Operating Agency Responsibilities), 45.104(a)
(Tex. Dep’t of Aging & Disability Servs., Comty. Living Assistance & Support
Servs. & Comty. First Choice (CFC) Servs.). The programs referenced by
Disability Rights Texas are Medicaid-waiver programs operated by Texas Health
and Human Services 8 that provide community-based services and supports to
eligible individuals. Id. §§ 9.154(a), 45.104(a). These programs are regulated
under Title 40, Part 1 of the Administrative Code (Dep’t of Aging & Disability
Servs., Social Servs. & Assistance).
The home and community-based services programs under chapter 9 of
Title 40, Part 1 supplement rather than replace an individual’s “natural supports
and other community services for which the individual may be available.” Id.
§ 9.154(c). The regulations for programs under chapter 9 call for the programs to
“encourage the individual, the individual’s LAR [legally authorized
8 These services were formerly provided by the Department of Aging and Disability Services.
21 representative], and family members, with the consent of the individual or the
individual’s LAR, to participate in making choices about where the individual will
live, attend school, work, and take part in leisure activities.” Id.
§ 9.172 (emphasis added). But as an adult without a guardian, A.E. does not
have an LAR, 9 and she does not have the capacity to consent on her own. The
program’s existence does not change the fact that A.E.’s parents would have to
make most decisions for her.
Similarly, if an individual wants to enroll in a program under the
“community living assistance and support services” program in chapter 45, a
case manager from the program provider must, among other things, “obtain the
signature of the individual or LAR on a Verification of Freedom of Choice form
designating the individual’s choice for enrollment.” Id. § 45.212. Again, A.E. has
no LAR and does not have the capacity to make an informed choice, much less
the capacity to sign a document to indicate that choice. Further, the individual, or
an LAR on behalf of the individual, must comply with certain requirements,
including completing Medicaid paperwork and reviewing and agreeing to an
individual plan of care, which A.E. cannot do and cannot understand if explained
to her. See id. §§ 45.103(57), 45.302. These services do not obviate the need
for a guardianship.
9 The regulations define an LAR as “[a] person authorized by law to act on behalf of a person with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.” 40 Tex. Admin. Code § 9.153(51), 45.103(61).
22 Accordingly, the probate court abused its discretion in finding that “[t]here
is evidence that supports and services . . . available to [A.E.] that would avoid the
need for a guardianship are feasible and would enable [A.E.] to make personal
decisions regarding residence, voting, operating a motor vehicle . . . and
marriage” and in refusing to find that supports and services have been
considered and are not feasible because clear and convincing evidence
establishes the contrary as a matter of law and no evidence supports the probate
court’s findings. See Tex. Est. Code Ann. § 1002.031, 1101.101(a)(1)(E). We
sustain H.E. and P.E.’s fifth issue.
C. The Evidence Showed that Alternatives to Guardianship are Not Feasible, and No Evidence Supported a Contrary Finding.
In their fourth issue, H.E. and P.E. argue that the probate court abused its
discretion by not finding that alternatives to guardianship that would avoid the
need for the appointment of a guardian have been considered and determined
not to be feasible. See id. § 1101.101(a)(1)(D). We agree. Clear and
convincing evidence at the hearing established that alternatives to guardianship
are not feasible for A.E.
1. Statutory Alternatives to Guardianship
The Estates Code defines “alternatives to guardianship” to include the
following:
(1) execution of a medical power of attorney under Chapter 166, Health and Safety Code;
23 (2) appointment of an attorney in fact or agent under a durable power of attorney as provided by Subtitle P, Title 2;
(3) execution of a declaration for mental health treatment under Chapter 137, Civil Practice and Remedies Code;
(4) appointment of a representative payee to manage public benefits;
(5) establishment of a joint bank account;
(6) creation of a management trust under Chapter 1301;
(7) creation of a special needs trust;
(8) designation of a guardian before the need arises under Subchapter E, Chapter 1104; and
(9) establishment of alternate forms of decision-making based on person-centered planning.
Tex. Est. Code Ann. § 1002.0015 (West Supp. 2017); see id. §§ 1301.053–
.054 (West 2014 & Supp. 2017); Tex. Health & Safety Code Ann. § 166.039.
A.E.’s parents do not seek appointment as guardians of A.E.’s estate, and the
options in (4), (5), (6), and (7) do not address A.E.’s needs for a guardian of the
person.
The Estates Code does not define “person-centered planning” for
purposes of guardianships. 10 However, the code provides for “supported
decision-making,” defined as
10 There is no single definition of “person-centered planning” used among experts in the field. A. Frank Johns, Person-Centered Planning in Guardianship: A Little Hope for the Future, 2012 Utah L. Rev. 1541, 1547 (2012). “[I]t is described more as a spectrum of processes based on one general philosophical background.” Id. at 1547–48. “From this spectrum of processes comes a general understanding of just how person-centered philosophy is applied. While
24 a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult.
Tex. Est. Code Ann. § 1357.002 (West Supp. 2017) (emphasis added). In line
with that definition, as an alternative to guardianship, an adult with a disability
may enter into a supported-decision making agreement with a “supporter” under
which the supporter agrees to do some or all the following:
(1) provide supported decision-making, including assistance in understanding the options, responsibilities, and consequences of the adult’s life decisions, without making those decisions on behalf of the adult with a disability;
(2) subject to Section 1357.054, assist the adult in accessing, collecting, and obtaining information that is relevant to a given life decision, including medical, psychological, financial, educational, or treatment records, from any person;
(3) assist the adult with a disability in understanding the information described by Subdivision (2); and
(4) assist the adult in communicating the adult’s decisions to appropriate persons.
Id. §§ 1357.002–.003, 1357.051 (West Supp. 2017) (emphasis added). The
agreement must be signed voluntarily, without coercion or undue influence. Id.
§ 1357.055 (West Supp. 2017). The purpose of the chapter establishing
traditional guardianship is system-driven, person-centered philosophy is a person-directed process where the individual identifies what is important. It is a philosophy that applies the principle of self-determination.” Id. at 1548 (emphasis added). “The key elements of person-centered planning include person-directed preferences and establishing a vision based on the person’s abilities, and strengths, which are determined from informal and formal knowledge.” Id.
25 supported decision-making agreements “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 purposes of establishing a guardianship.” Id. § 1357.003 (emphasis added).
As another guardianship alternative, chapter 166 of the Health and Safety
Code, the Advance Directives Act, governs medical directives, out-of-hospital do-
not-resuscitate orders, and medical powers of attorney. Tex. Health & Safety
Code Ann. §§ 166.001, 166.002 (West 2017). Under section 166.039 of that
chapter, if an adult “qualified patient”—“a patient with a terminal or irreversible
condition that has been diagnosed and certified in writing by the attending
physician”—is incompetent or is mentally or physically incapable of
communication, then treatment decisions for the patient can be made by the
patient’s legal guardian, agent under a medical power of attorney, or parents (if
the patient has no legal guardian or agent), based on knowledge of what the
patient would desire. Id. §§ 166.031, 166.039(a), (b), (c) (West 2017). For
purposes of the chapter, the phrase “irreversible condition” means a condition,
injury, or illness that, among other elements, is fatal. Id. § 166.002(9).
While not listed in the Estates Code as an alternative to guardianship,
Health and Safety Code chapter 313, the Consent to Medical Treatment Act, is
another statutory provision that allows a person to consent to the medical
treatment of another. Id. § 313.001 (West 2017). The chapter allows certain
specified persons to consent to medical treatment on behalf of a patient when the
26 patient is an adult who is (1) mentally or physically incapable of communication
and (2) a patient in a home and community support services agency, a hospital,
or a nursing home, or is an inmate of a county or municipal jail. Id.
§ 313.004 (West Supp. 2017). The chapter does not apply to consent for
emergency medical treatment, which is covered in chapter 773 of that code. Id.
§ 313.003(4) (West Supp. 2017). No party disputes that A.E. would be able to
receive emergency medical care, regardless of her ability to consent.
2. None of the Alternatives Avoid the Need for Guardianship.
H.E. testified that even if explained to her, her daughter A.E. could not
understand the contents of a power of attorney, a supported decision-making
agreement, or any kind of a legal document, and A.E. does not have the capacity
to execute these types of documents. H.E. further stated that A.E. is not capable
of making her own medical decisions even with her parents’ help, could not give
informed consent, and would not understand the contents of a written consent
form. A.E. does not know what medications she takes or how to take them. In
addition, the court investigator recognized that A.E. would not be able to give an
opinion on or make a decision about her care situation, about voting, or about her
ability to get married; that A.E. does not understand the consequences of her
decisions; that she does not have the capacity to sign a power of attorney; and
that she cannot give informed consent to a doctor. A.E.’s doctor also gave
evidence that A.E. cannot understand the consequences of her actions, cannot
27 consent to medical treatment, and has a deficit in understanding and
communicating.
Clear and convincing evidence established that A.E. is incapacitated and
cannot execute a declaration for mental health treatment under Civil Practice and
Remedies Code section 137.002. See Tex. Civ. Prac. & Rem. Code Ann.
§ 137.002. The provision in Health and Safety Code section 166.039 that allows
a parent to consent to medical treatment for an adult incompetent child is also
inapplicable to A.E. because she does not have a condition that, if left without
life-sustaining treatment, is fatal; thus, she is not a “qualified patient” under that
section. See Tex. Health & Safety Code Ann. §§ 166.031, 166.039.
A.E. is not competent and therefore cannot execute a written directive for
medical treatment under Health and Safety Code chapter 166. See id.
§ 166.032(a) (West 2017). The probate court found that Health and Safety Code
chapter 313 was an alternative to guardianship, but that chapter likewise does
not apply to A.E. because she lives at home and has not been hospitalized. See
id. § 313.004 (applying only to an adult patient in a home and community support
services agency, a hospital, a nursing home, or jail). Nor, as discussed herein,
does A.E. have the capacity to consent to hospitalization for non-emergency
treatment. While the parties do not dispute that A.E. can receive emergency
medical treatment, the evidence establishes as a matter of law that she has no
way of providing informed consent to receive non-emergency medical treatment.
28 Accordingly, without a guardianship, the evidence demonstrated, without
contravention, that A.E. cannot receive non-emergency medical treatment. 11
Further, the uncontroverted evidence established as a matter of law that
A.E. is not capable of applying for government services or benefits; enrolling
herself in educational or vocational services; or understanding the terms of a
lease or other agreement to establish a residence. The uncontroverted evidence
also established that A.E. cannot have an agent take such actions on her behalf
under a power of attorney because she does not have the capacity to execute
such an instrument. See In re Estate of Vackar, 345 S.W.3d 588, 597 (Tex.
App.—San Antonio 2011, no pet.) (noting a person lacks mental capacity to
execute a power of attorney if the person does not understand the nature or
consequences of executing the instrument). A.E. cannot manage any part of her
physical or mental health; cannot make personal decisions on important matters
such as voting, determining her residence, or marriage; and cannot handle basic
11 Additionally, though not raised as an issue in the probate court proceedings, as Amicus Cook Children’s points out, by federal and state law, a doctor generally must keep patient records and communications confidential. See Tex. Occ. Code Ann. § 159.002 (West Supp. 2017); see also Standards for Privacy of Individually Identi[]fiable Health Information, 65 Fed. Reg. 82462-01 (Dec. 28, 2000) (codified at 45 C.F.R. pts. 160 & 164) (rules implementing the privacy provisions of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191). This confidentiality requirement puts A.E., her parents, and any potential doctor for A.E. in an untenable position because A.E. cannot meaningfully consent to disclosing her medical information to her parents, but if her parents do not have that information, they can neither make medical decisions regarding her care nor help her make such decisions (even assuming she had the capacity to make such decisions with assistance, which she does not).
29 daily activities on her own. And she cannot authorize another to do any of those
activities on her behalf.
Likewise, supported decision-making cannot serve as an alternative to
guardianship for A.E. because she is incapacitated, and she cannot make
important life decisions for herself. Even the court investigator, whose report
recommended against guardianship, recognized that A.E. does not understand
the consequences of her decisions and would not be able to give an opinion on
or make a decision about her care situation, about voting, or about her ability to
get married. Because supported decision-making calls for giving a person
assistance in understanding the person’s options but prohibits a supporter from
making decisions for the person, the evidence before the probate court
established that this alternative is simply not feasible for A.E.
A.E.’s attorney ad litem stated in her report that a full guardianship is
necessary for A.E. Amicus Disability Rights Texas asserts that neither the
attorney ad litem nor A.E.’s parents mentioned person-centered planning in the
hearing, while the court investigator reported to the probate court that person-
centered planning was appropriate. But the court investigator merely checked a
box on a form indicating person-centered planning was appropriate. Other than
this “checked box,” there is no testimony or documentary evidence showing that
person-centered planning could substitute for a guardianship in this case. 12
12 For example, Disability Rights Texas quotes the Administrative Code provisions addressing Texas’s Medicaid-waiver program to say that person-
30 Because clear and convincing evidence established that alternatives that
would avoid the need for a guardianship have been considered and are not
feasible for A.E. and there was no evidence to the contrary, the probate court
abused its discretion by finding the contrary. See Tex. Est. Code Ann.
§ 1101.101(a)(1)(E). We sustain H.E. and P.E.’s fourth issue.
D. The Evidence Showed that A.E. Needs a Guardian to Protect Her Rights, and No Evidence Supported a Contrary Finding.
In their third issue, H.E. and P.E. argue that the probate court abused its
discretion by not concluding that A.E.’s rights need to be protected by the
appointment of a guardian. See id. § 1101.101(a)(1)(C). A.E.’s parents maintain
that without a guardian, A.E. is susceptible to abuse and exploitation and will be
denied medical care and educational benefits. We agree that clear and
convincing evidence established that A.E. needs a guardian to protect her rights.
First, a person with an intellectual disability such as A.E. has the right to
receive treatment and habilitative services that suit her needs, maximize her
capabilities, and enhance her coping abilities. See Tex. Health & Safety Code
centered planning is a “process that empowers the individual . . . to direct the development of [a plan] that meets the individual’s outcomes” and that it “identifies existing supports and services,” “identifies natural supports,” “occurs with the support of a group of people chosen by the individual,” and “accommodates the individual’s style of interaction.” 40 Tex. Admin. Code § 45.103(78). But the record establishes that A.E. does not have the capacity to direct the development of a plan. And identifying supports and services and natural supports and accommodating A.E.’s style of interaction, while certainly guidelines that guardians should follow, do not take the place of informed consent to medical procedures or educational programs and cannot enable A.E. to understand her options regarding marriage, residency, voting, or driving.
31 Ann. § 592.017 (West 2017). However, as we have discussed at length herein,
A.E. cannot consent to receive medical or psychological treatment and other than
a guardianship, there is no legal procedure through which her parents can
consent for her to receive non-emergency medical treatment.
Second, A.E. has the right to receive educational services that are
appropriate for her needs. Id. § 592.014 (West 2017); see 20 U.S.C.A.
§ 1400 (West 2010 & Supp. 2016) (the Individuals with Disabilities Education Act
or IDEA). As H.E. testified at the hearing, because A.E. is now eighteen, A.E.’s
rights under the IDEA have been transferred to her. See Reyes v. Manor I.S.D.,
850 F.3d 251, 253 (5th Cir. 2017). The evidence established that A.E. does not
have the capacity to consent to the services or to understand or enforce her
rights under the IDEA on her own, nor can she enforce any other rights to
educational programs and benefits for which she may be eligible. 13 The
evidence also established that A.E. does not have the ability to consent to her
parents making educational decisions for her. Thus, her parents have no right to
13 At the time of the hearing, A.E. was a junior in high school. Her mother testified that “she could be out next year, but she’ll probably be in transition until [age] 21.” A student with disabilities is eligible to participate in a school district’s special education program through age twenty-one. Tex. Educ. Code Ann. § 29.003 (West 2012). The IDEA provides for transition services, “a coordinated set of activities for a child with a disability . . . to facilitate the child’s movement from school to post-school activities, . . . [and] includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.” 20 U.S.C.A. § 1401(34) (West 2010); see 19 Tex. Admin. Code § 75.1023 (Tex. Educ. Agency, Provisions for Individuals Who Are Members of Special Populations).
32 enforce A.E.’s rights under the IDEA. See id. at 253. In fact, the evidence
established that A.E. does not have the capacity to consent to or enroll in any
other government benefits program under which she may have rights. See, e.g.,
40 Tex. Admin. Code § 45.212. A.E. has an IQ between 50 and 55. She does
not understand the consequences of her actions, but she likes to please the
people around her and tends to agree with whatever is said to her. She could
answer “yes” if asked if her parents could sit in at ARD meetings, 14 but she would
not understand what was being asked of her and would not understand the
significance of consenting to her parents making an educational decision for her.
Finally, A.E. has the right to protection from exploitation and abuse
because of her intellectual disability. See Tex. Health & Safety Code Ann.
§ 592.012 (West 2017). The evidence establishes, however, that A.E. is
vulnerable to exploitation or abuse. The court investigator initially testified that
she had no concern that A.E. might be susceptible to abuse or exploitation, but
the reasons she gave for her lack of concern was that A.E. lived at home and
was “with her parents pretty much everywhere she goes” and that “her parents
know that she’s involved in special programs in school for people with
disabilities.” Upon questioning, however, the investigator acknowledged that
there would be instances when A.E. was not with her parents. When asked if
14 In Texas, the people responsible for developing a student’s individual education program under the IDEA are known as an Admissions, Review, and Dismissal (ARD) committee. Rockwall I.S.D. v. M.C., 816 F.3d 329, 331, n.1 (5th Cir. 2016).
33 she thus agreed that A.E. could be subject to abuse or exploitation, she agreed it
was possible.
A.E.’s mother testified that she “absolutely” believed that A.E. could be
subject to exploitation if she had no guardian. A.E.’s doctor stated in her
certificate that A.E. is totally without capacity to care for herself and stated in her
affidavit that she believed A.E. was susceptible to abuse and exploitation. The
court investigator also recognized that A.E. cannot make decisions on her own.
And the attorney ad litem did not believe that any less restrictive means would be
better for A.E. than guardianship.
Because clear and convincing evidence established that A.E. needs a
guardian to protect her rights, and there was no evidence to the contrary, the
probate court abused its discretion by finding otherwise. See Tex. Est. Code
Ann. § 1101.101(a)(1)(C). We sustain H.E. and P.E.’s third issue.
E. The Evidence Showed that It Is in A.E.’s Best Interest to Have Her Parents as Guardians, and No Evidence Supported a Contrary Finding.
In their second issue, H.E. and P.E. argue that the probate court abused
its discretion by not finding it is in A.E.’s best interest to appoint her a guardian.
See id. § 1101.101(a)(1)(B). In their sixth issue, they contend that the probate
court abused its discretion in not finding H.E. and P.E. are eligible to act as
guardians and are entitled to be appointed. See id. § 1101.101(a)(2)(B).
As already discussed above, A.E. is unable to take care of her daily life
activities without assistance and would be unable to safely make decisions that
34 would affect her finances, residence, or medical affairs. She cannot dispense
her own medications and does not know what they are; does not know who her
doctor is and could not schedule her own doctor’s appointments; and cannot
understand the doctor’s advice, even if explained to her. She cannot consent to
or take advantage of governmental programs and benefits, including education
programs and benefits, yet by law her parents do not have the authority to
consent for her. The evidence established that it is in A.E.’s best interest for a
guardian to be appointed so that she can continue to receive regular medical
care and to take advantage of government programs and benefits for which she
is eligible.
The evidence further established that H.E. and P.E. should be the
guardians appointed for A.E. By statute, A.E.’s parents are entitled to the
appointment. See id. § 1104.102 (West 2014) (providing that if an incapacitated
adult does not have an eligible spouse who can serve as guardian, the nearest of
kin to the incapacitated person is entitled to the guardianship if the person is
eligible). A.E.’s parents are not disqualified from the appointment. See id.
§§ 1104.351–.353 (West 2014) (disqualifying from appointment a person who is
incapable of managing the person or is unsuitable or whose conduct is
“notoriously bad”), § 1104.354 (West 2014) (disqualifying a person with certain
specified conflicts of interest), § 1104.358 (West 2014) (disqualifying a person
who has committed family violence and is subject to a protective order protecting
35 the proposed ward). A.E.’s attorney ad litem agreed that her parents are not
disqualified.
The evidence overwhelmingly shows that it is in A.E.’s best interest for
H.E. and P.E. to be the guardians that are appointed. See id. § 1104.001 (West
2014), § 1104.002 (West Supp. 2017) (providing that in appointing a guardian,
the court must make a reasonable effort to consider the incapacitated person’s
preference of guardian and must consider the incapacitated person’s best
interest). The doctor’s certificate stated that the best place for A.E. to reside is
with her parents. The court investigator testified that A.E. is close with her
parents and that “they have a really good relationship.” And while the
investigator’s report stated that A.E. does not understand guardianship, the
attorney ad litem told the court that after talking to A.E., A.E. “was able to tell [the
ad litem] that she thinks she likes [her parents’] help, she wants the help to
continue.” At the end of the hearing, the probate court commended A.E.’s
parents “for taking care of [A.E.] so well,” and in its findings of fact and
conclusions of law, the court found that A.E. is being well taken care of by her
parents.
This court is fully cognizant that the statutory requirements rightly give
courts a duty to exercise care and caution before removing a person’s most
sacred rights through a guardianship proceeding and to grant a full guardianship
as a last resort in cases in which other options will not suffice to protect the
proposed ward. We recognize that the probate court here correctly took its
36 statutory duty seriously. Nevertheless, in this case, the evidence in favor of a
guardianship of A.E. was clear and convincing, and the probate court had no
evidence that lesser alternatives would protect A.E. and be in her best interest.
Because clear and convincing evidence established that (1) A.E.’s parents
are eligible to act as A.E.’s guardians and are entitled to the appointment 15 and
(2) it is in A.E.’s best interest for her parents to be appointed as her guardians of
the person and no evidence supported contrary findings, the probate court’s
failure to appoint H.E. and P.E. as guardians was an abuse of discretion. See id.
§ 1101.101(a)(1)(B), (a)(2)(B). We sustain H.E. and P.E.’s second and sixth
issues.
Because our holdings on the above issues are dispositive, we do not reach
H.E. and P.E.’s remaining issues. See Tex. R. App. P. 47.1.
CONCLUSION
We have reviewed the evidence in the light most favorable to the probate
court’s decision. Even under this deferential standard, clear and convincing
evidence established as a matter of law that (1) A.E. is totally incapacitated
because of a mental condition; (2) A.E. does not have the capacity to operate a
motor vehicle, make personal decisions regarding residence, and vote in a public
election; (3) supports and services and alternatives that would avoid the need for
15 Though the evidence on this point is clear and convincing, such a finding requires only a preponderance of the evidence. Tex. Est. Code Ann. § 1101.101(a)(2)(B).
37 guardianship are not feasible; (4) it is in A.E.’s best interest to have the probate
court appoint H.E. and P.E.—who are eligible to act as A.E.’s guardians and are
entitled to appointment—as guardians of A.E.’s person; and (5) A.E.’s rights will
be protected by the appointment of a guardian. No evidence supported the
probate court’s findings to the contrary. We therefore hold that the probate court
abused its discretion in denying H.E. and P.E.’s guardianship application. See
Ford Motor Co., 363 S.W.3d at 578.
Having sustained H.E. and P.E.’s first, second, third, fourth, fifth, sixth, and
seventh issues, we reverse the probate court’s denial of H.E. and P.E.’s
guardianship application. We remand this case to the probate court for that court
to render an order consistent with this opinion and with Texas Estates Code
section 1101.151. See Tex. Est. Code Ann. § 1101.151 (West Supp. 2017).
/s/ Mark T. Pittman MARK T. PITTMAN JUSTICE
PANEL: GABRIEL, PITTMAN, and BIRDWELL, JJ.
DELIVERED: June 14, 2018
Related
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