Jon M. Bradley
Vice Chair, Corpus Christi
Abigail Rios Barrera, M.D.
John A. Cuellar
Manson B. Johnson
Terry Durkin Wilkinson
James R. Hine
May 31, 2002
To:All Licensed Nursing Facilities
Re: Provider Letter #02-10 -- Guardianship
The purpose of this letter is to remind facilities of their responsibilities for ensuring the rights of its residents. Each facility must have policies relating to the rights of its residents and inform residents of these policies. When a resident becomes incapacitated and is no longer able to participate in care planning, the facility must involve the party that is authorized to make decisions on behalf of the resident. This person may be a guardian, a person designated in an advanced directive, or a health care agent under a medical power of attorney. If no person has been appointed to make decisions on behalf of a resident, a surrogate decision-maker can be used in accordance with Chapter 313, Health and Safety Code, Consent to Medical Treatment Act.
Under Texas law, if an adult patient in a hospital or nursing home is comatose, incapacitated, or otherwise mentally or physically incapable of communication, an adult surrogate from the following list may consent to medical treatment on behalf of the patient:
the patients spouse;
an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker;
a majority of the patients reasonably available adult children;
the patients parents; or
the individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patients nearest living relative, or a member of the clergy.
If a resident (who does not have the capacity to make medical decisions on his own behalf) does not have a surrogate decision-maker, the facility may make a referral via an informational letter to the court which has guardianship jurisdiction in the county where the facility is located. This referral can be made by the attending physician, nurse practitioner, director of nurses or their assistant, facility administrator, social worker, advocate, ombudsman or any other interested professional.
It is important to note that sending an informational letter to a court is not the same as filing for guardianship. Under Section 683 of the Texas Probate Code, once the matter is referred to the court, it is the duty of the court to determine if a guardianship is necessary. Each county uses its own form for informational letters; an example of an informational letter is attached. The court may request that the facility complete the capacity assessment instrument for its use. This instrument and instructions can be found on the DHS web site at http://ltc.dhs.state.tx.us/Policy/ltc-pol.htm.
- Original Signature on File -
Marc S. Gold
Long Term Care-Policy