David F. Henges v. Leslie Henges Dolliver, Limited Guardian of the Person and Full Guardian of the Estate for David Henges ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00429-CV
David F. Henges, Appellant
v.
Leslie Henges Dolliver, Limited Guardian of the Person and
Full Guardian of the Estate for David Henges, Appellee
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-19-000860, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from the probate court’s order finding David Faulkner Henges
incapacitated and appointing his daughter, Leslie Henges Dolliver, permanent guardian with
limited authority over his person and with full authority of his estate. In one issue, Henges
asserts that the probate court abused its discretion by disregarding alternatives to guardianship
and imposing a guardianship. We will affirm the probate court’s order.
BACKGROUND
Henges is a retired orthopedic surgeon. After his wife died in 2009, Henges lived
with Dolliver and her family for approximately ten years. In 2014, after Henges recovered from
a bout of double pneumonia and a cardiac event that triggered his defibrillator pacemaker,
Dolliver and her sister observed what they believed to be unusual and concerning behaviors on
his part, specifically a change in Henge’s handling of his retirement investments. At Dolliver’s
urging, Henges submitted to a neurological evaluation, which resulted in a diagnosis of mild
dementia. In 2015, the family updated Henges’s formal estate-planning documents, which
included a durable power of attorney and a medical power of attorney that named Dolliver and
her sister as co-agents. In 2018, Henges suffered what he believed to be a heart attack and
was hospitalized. After the hospitalization and a range of diagnostic procedures, his treating
physicians determined that he had an issue with his gall bladder. Dolliver observed that the
diagnostic procedures, which included three anesthesias, were difficult for Henges to tolerate and
she believed caused Henges to have a diminished ability to care for himself. Dolliver and her
sister determined that it was necessary to move Henges to a nearby assisted living facility.
Henges lived in that facility for approximately six months until early 2019 when he moved to the
newly opened Belmont Village, where he currently resides.
In March 2019, Dolliver and her sister filed a joint application for limited
guardianship of Henges’s person. The application alleged that Henges, who was then eighty-one
years old, had been diagnosed with vascular dementia with delusions and that his condition was
such that he was incapable of managing his personal, medical, legal, and financial affairs. The
application alleged that an existing management trust created and funded pursuant to a Statutory
Durable Power of Attorney granted to Dolliver was at that time a less restrictive alternative to
guardianship of Henges’s estate, but that an existing Medical Power of Attorney had proved
insufficient to protect Henges from making decisions against his own interest. The application
further alleged that Henges refuses medical advice and treatments from his doctors and threatens
to revoke the Medical Power of Attorney, and that Henge’s physician, Dr. Matthew Freeman,
advised Dolliver to seek guardianship of Henges’s person because the physician was no longer
comfortable relying on the authority granted by the Medical Power of Attorney.
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The application was supported by a report from Dr. Freeman, a
neuropsychologist, who stated that Henges had been diagnosed with mild cognitive impairment
and suspected dementia in 2014 by Dr. Bertelson, who Henges replaced with Dr. Devere because
Henges disagreed with the diagnosis. Dr. Devere confirmed the diagnosis, prescribed an Exelon
patch, and conducted an additional test to determine “if Alzheimers was part of the problem.”
Dr. Freeman stated that the results of that test showed a “strong likelihood of Alzheimers,” but
that Henges did not return for visits with his neurologist from 2015 to 2018. When his Exelon
prescription ran out, Henges contacted an old friend who was a neurologist, Dr. Phil Leonard.
Dr. Freeman stated that Dr. Leonard refilled the prescription for a couple of years without
personally evaluating Henges and that Dr. Leonard’s Texas medical license had been revoked by
the Texas Medical Board in June 2018.
Dr. Freeman reported that Henges underwent a cognitive evaluation in August
2018 and that after reviewing that evaluation and the totality of the testing done over the past
five years, and after conducting multiple personal interviews, he believed that Henges is an
“extreme case” who refuses to accept his diagnosis and has made an appointment with yet
another neurologist. Dr. Freeman stated that although Henges had appointed Dolliver and her
sister as his co-agents on his medical power of attorney, he is “very combative with them and
refuses to give up the drivers’ license that he managed (with the help of a well-meaning friend)
to get replaced in February [2019].” Dr. Freeman recommended that the daughters seek a
guardianship so they could prevent him from driving, which presents a danger to himself and
others, and so that they could prevent Henges from following through on his threat to revoke
the medical power of attorney if they do not follow his wishes. Dr. Freeman opined that
Henges is “impaired and needs to ultimately have someone in charge of making sound medical
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decisions for him.” The application was also supported by Dr. Freeman’s Certificate of Medical
Examination in which he diagnosed Henges with vascular dementia with delusions with a
prognosis of gradual continued progression.
In response to the application, Henges retained an attorney, Don Ford, to
represent him and requested that the court appoint Ford as Henges’s guardian ad litem and
stated that he opposed the guardianship because he was not incapacitated and, even if found
to be incapacitated, available supports and services were sufficient to avoid the need for a
guardianship.
At a September 2019 hearing on the application, the court heard testimony
that focused on the issues of Henges’s residence, medical care, and desire to continue driving.
At the time, Dolliver did not seek guardianship of Henges’s estate because she believed the
management trust provided sufficient protection, specifically because the brokerage firm “ha[d]
the dementia diagnosis on file” and knew to call her if there was unusual activity. Dr. Freeman
testified about his diagnosis of mild vascular dementia with “a possible component of
Alzheimer’s disease.” He stated that he had witnessed Henges having “delusional thoughts in
clinic,” which he described as “firmly held false beliefs.” Dr. Freeman testified that his
diagnosis was consistent with the reports of other neurologists who had examined Henges.
The court heard testimony from Dr. Edward Gripon, a forensic psychiatrist, who
opined that Henges was not incapacitated. He testified that Henges was no more vulnerable to
being taken advantage of than other people and that Henges was capable of administering his
own medication, although he agreed that Henges “may not agree with all of them” and that
Henges might not take medications prescribed for dementia if he did not agree with the
diagnosis. Dr. Gripon testified that Henges did not want to continue to live at Belmont Village
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and wants to go back to a less restrictive environment. After Dr. Gripon finished testifying, the
court recessed the hearing.
After the hearing, Dolliver filed a motion asking the court to appoint Dr. Jason
Schillerstrom to perform an independent medical examination. See Tex. Est. Code § 1101.103
(providing that if court determines it is necessary, court may appoint physician to examine
proposed ward). Henges agreed to the examination and the parties also agreed that Henges
would not drive a car while the case was pending and would be accompanied by a representative
of a temporary guardian service at all medical appointments. Dr. Schillerstrom performed the
medical evaluation and submitted a report to the court. Dr. Schillerstrom’s evaluation of
Henges’s mental functioning included a diagnosis of “Major Neurocognitive Disorder, secondary
to cerebrovascular disease” of mild severity with a poor prognosis. He stated that it would be
in Henges’s best interest to be placed in a secure facility for the elderly or in a secure nursing
facility that specialized in the care and treatment of people with dementia. Dr. Schillerstrom
also stated that Henges did not have sufficient capacity to give informed consent to the
administration of dementia medication, which he found would be in Henges’s best interest to
take. Dr. Schillerstrom found that Henges had deficits in short-term memory, problem solving,
reasoning logically, grasping abstract aspects of his situation, and breaking down complex
tasks into simple tasks and carrying them out. Finally, while Dr. Schillerstrom concluded
that Henges could attend to basic activities of daily living, such as bathing and dressing, he
was not able to initiate and make responsible decisions regarding complex financial decisions,
managing a bank account, operating a motor vehicle, consenting to medical treatment, or
determining his own residence.
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Thereafter, Dolliver amended the application to seek guardianship not only of
Henges’s person, but also of his estate. Dolliver alleged that “it has become apparent that certain
assets cannot be adequately protected or managed using a trust or other less restrictive means”
and that Henges had repeatedly told Dolliver that she had gone beyond the power he granted her
in the Statutory Durable Power of Attorney in 2015 and threatened to revoke it. Dolliver also
alleged that after she received an alert about account activity related to Henges’s Roth IRA, the
financial institution holding the account “made it clear to her that in order to protect [Henges]
from being able to take a distribution from his Roth IRA account, they would need a court order
or authority from a legal guardian of [Henges’s] estate.”
The probate court resumed the hearing on the guardianship application in
May 2020. The court heard testimony from Dr. Schillerstrom, Dolliver, and Henges, and
Dr. Gripon gave additional testimony. The court formally received the written report of its court
investigator, who concluded that, based on the medical evidence, less restrictive alternatives to
the appointment of a guardian of Henges’s person and estate were not feasible or appropriate.
Dr. Schillerstrom testified that the natural course of Henges’s illness made it increasingly
difficult for him to make reasonable choices and that his deficiencies in “executive functioning”
affected “things like financial oversight [and] medication management.” Dr. Schillerstrom
emphasized that executive function, rather than memory, is what predicts a person’s ability to
care for one’s self and that Henges’s deficient executive function impeded him from making
complicated business or financial decisions for himself.
The day after the hearing concluded, the court announced its ruling that, based on
a review of the record, it found by clear and convincing evidence that Henges was partially
incapacitated and that, “although he is pretty close to being totally incapacitated, he does have
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the ability to vote, and I’ll let him have the right to vote.” The court stated that it would be
granting a limited guardianship of the person and a full guardianship of the estate. The court
signed an order appointing Dolliver guardian of Henges’s person with limited authority and
guardian of Henges’s estate with full authority. The court ordered that Dolliver post a $700,000
bond, that Henges be allowed to manage a personal allowance of $300 per month for personal
expenditures, and that Dolliver submit annual reports of the person and an annual account to the
court. At Henges’s request, the court filed findings of fact and conclusions of law. Henges then
perfected this appeal.
DISCUSSION
The Legislature has determined that a court shall appoint a guardian for a person
other than a minor according to the circumstances and considering the best interests of the ward.
Tex. Est. Code § 1104.101. Before appointing a guardian, the court must find by clear and
convincing evidence that: (1) the ward is an incapacitated person; (2) it is in the best interest of
the ward to have the court appoint a guardian; (3) the rights of the ward or the ward’s property
will be protected by the appointment of a guardian; and (4) alternatives to guardianship and
supports and services available have been considered and determined to be infeasible. Id.
§ 1101.101(a)(1). The probate court made the following findings of fact and conclusions of law:
FOF 5: At trial on September 26, 2019, the testimony indicated that the
alternatives to guardianship currently allowing [Dolliver] to manage [Henges’s]
personal and medical care, including the Medical Power of Attorney, were no
longer protecting [Henges]. For example, [Henges] would diagnose himself with
a condition, then order medications and hide them in his room at Belmont Village,
against the rules and against the medical advice of his treating physicians.
[Henges] also insists on dosing his own medications, a practice that was against
medical advice, against the rules at Belmont, and which the testimony indicated
risked damage to his heart. Finally, [Henges] had at times made threats to revoke
his Medical Power of Attorney.
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FOF 6: Dr. Blake Freeman, a neurologist and one of [Henges’s] treating
physicians, testified as the expert witness for [Dolliver] and [Dolliver’s sister].
Dr. Freeman determined that [Henges] suffers from vascular dementia, which
causes cognitive deficits and executive dysfunctions. According to Dr. Freeman,
[Henges] does not have the cognitive ability [to] make his own financial
decisions, manage his medications and medical care, or operate a motor vehicle.
Dr. Freeman, as one of [Henges’s] treating physicians, has performed extensive
medical testing and reviewed a multitude of medical records. Dr. Freeman
confirmed to this Court that several other neurologists concurred with Dr.
Freeman’s diagnosis of [Henges]. The Court found Dr. Freeman’s testimony in
this case to be credible.
FOF 7: Dr. Edward Gripon testified that he interviewed [Henges] for
approximately two or three hours and reviewed medical records provided by
[Henges]. Dr. Edward Gripon concluded that [Henges] suffers little cognitive
impairment.
FOF 10: During the pause in trial after September 26, 2019, [Henges] acted in
ways that jeopardized his retirement accounts. In addition, [Dolliver] was unable
with her existing authority to fully protect the monthly income from [Henges’s]
veteran’s pension.
FOF 18: Dr. Jason Schillerstrom, the neurologist chosen by the Court, testified
about his examination of [Henges] and his diagnosis of major neurocognitive
disorder, secondary to cerebrovascular disease. Dr. Schillerstrom determined that
[Henges] had lost his executive functioning abilities, which left him unable to
make complex decisions for himself, determine his residence, make medical
decisions, or drive a motor vehicle, among other things. The Court found
Dr. Schillerstrom’s testimony to be credible.
FOF 19: Dr. Edward Gripon again testified that [Henges] suffered little cognitive
impairment. The Court was not persuaded by Dr. Gripon’s testimony in this case.
FOF 20: [Henges] testified to his belief that he has been misdiagnosed by
multiple doctors and to his belief that he does not suffer from any cognitive
impairment. [Henges] testified that he wants to purchase and drive a car and
purchase a home to live in by himself. [Henges] was adamant about his right to
vote.
FOF 21a: [Henges] is a partially incapacitated person without capacity to care for
himself, to manage his property, to make personal decisions regarding his
residence, and to operate a motor vehicle.
FOF 21c: Alternatives to guardianship and support and services available to
[Henges] that would avoid the need for the appointment of a guardian have been
considered and determined not to be feasible.
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FOF 22c: [Henges] lacks capacity to do some, but not all, of the tasks necessary
to care for himself with or without supports and services as indicated by his
mental and physical limitations as evidenced by recurring acts within the
preceding six months and continuing to this date.
FOF 22d: [Henges] lacks sufficient capacity with supports and services to make
personal decisions regarding his residence, operating a motor vehicle, and
marriage.
On appeal, Henges does not challenge the probate court’s findings related to Henges’s capacity
to care for himself or to make medical or financial decisions. Rather, he asserts only that the
court “abused its discretion by disregarding alternatives to guardianship” and challenges the
court’s finding that alternatives to guardianship either do not exist or are insufficient to protect
his interests. Henges argues that the lesser restrictive alternatives to guardianship that the court
“disregarded” include a medical power of attorney, a durable power of attorney, and a family
limited partnership and trust.
Dolliver counters that the evidence and the record demonstrate that the family has
attempted and exhausted the alternatives to guardianship. She maintains that the court heard
evidence from an independent geriatric psychiatrist, considered the report of its court
investigator, and heard testimony from Henges and other physicians about alternatives to
guardianship. Dolliver asserts that the probate court was within its discretion to determine that
the proposed alternatives to guardianship were no longer feasible or sufficient to protect
Henges’s interests.
Standard of Review
We review an order imposing a guardianship for an abuse of discretion. In re
Guardianship of Boatsman, 266 S.W.3d 80, 88 (Tex. App.—Fort Worth 2008, no pet.). “In
guardianship proceedings especially, the heavy responsibility for determining the best resolution
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of fundamental and emotional issues lies necessarily within the trial court’s sound discretion.”
In re Thetford, 574 S.W.3d 362, 380 (Tex. 2019). This Court’s review of such a proceeding
must be “singularly mindful of the trial court’s unique opportunity and responsibility to assess
the circumstances presented.” Id. A trial court abuses its discretion if it acts in an arbitrary
or unreasonable manner without reference to any guiding rules or principles. Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007). 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). 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).
In guardianship proceedings, legal and factual sufficiency of the evidence are
not independent, reversible grounds of error; instead, they are factors to consider in assessing
whether there was an abuse of discretion. In re Guardianship of A.E., 552 S.W.3d 873,
877 (Tex. App.—Fort Worth 2018, no pet.). Because the required findings in a guardianship
proceeding must be supported by clear and convincing evidence, in a legal sufficiency review,
we view the evidence in the light most favorable to the trial court’s decision to determine
whether a reasonable trier of fact could have formed a firm belief or conviction that its findings
were true. In re Boatsman, 266 S.W.3d at 85-86. In the legal sufficiency context, an abuse of
discretion does not occur when the trial court’s decision is based on conflicting evidence. In re
A.E., 552 S.W.3d at 877.
In addressing a factual sufficiency challenge, we must consider all the evidence in
the record—both in support of and contrary to the trial court’s findings—to determine whether a
factfinder could reasonably form a firm belief or conviction about the truth of the finding. In re
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Boatsman, 266 S.W.3d at 86. If the disputed evidence is so significant that a factfinder could
not have formed a firm belief or conviction in the truth of the trial court’s findings, then the
evidence is factually insufficient. Id. The trier of fact is the exclusive judge of the credibility of
the witnesses and the weight to be given their testimony. See In re C.H., 89 S.W.3d 17, 27-29
(Tex. 2002).
The Texas 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;
(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 § 1002.0015. Henges argues that his current estate planning arrangements
constitute “alternatives to guardianship” sufficient to avoid a guardianship of his estate.
Specifically, Henges points to a financial power of attorney that he has executed as well as the
trust and family partnership he created as part of his estate planning. Henges asserts that the trial
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court’s finding that these were no longer feasible alternatives to guardianship of his estate was
not supported by clear and convincing evidence. With regard to guardianship of his person,
Henges argues that the principal concern articulated at trial was that he was no longer able to
safely operate a motor vehicle, administer medications and make decisions about his medical
treatment, or address personal hygiene issues related to incontinence. Henges argues that
reasonable alternatives to guardianship exist to address these concerns, including the Texas
Department of Public Safety’s medical review process and a medical power of attorney he
has executed. Henges contends that the trial court’s finding that these were not reasonable
alternatives to a guardianship of his person was not supported by clear and convincing evidence.
Guardianship of Henges’s Estate
Evidence was presented at trial that the majority of Henges’s financial assets,
including real estate and a brokerage account, are held in a family partnership and trust that he
created in 2015. The trust does not, however, include Henges’s IRA retirement account or the
military retirement benefits he receives monthly. Henges argues on appeal that, although the
court has found him to be incapacitated, alternatives to guardianship exist that would sufficiently
protect the financial assets that are not included in the family partnership and trust. Henges
asserts that Dolliver could manage those funds using her power of attorney and that the funds
could be deposited in a bank account held jointly by Dolliver and Henges. Dolliver testified,
however, that either of these alternatives would leave Henges with formal legal authority to
make financial decisions about these funds. Dolliver testified that as a joint bank account holder
or a person with Henges’s power of attorney, her authority would be limited to offering advice to
Henges. Dolliver stated that by May 2020, the power of attorney was no longer a feasible
alternative because an independent geriatric psychiatrist had determined that Henges lacked the
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capacity to make complex business decisions. She testified that the financial institution holding
Henges’s IRA retirement account informed her that without a guardianship in place if Henges
“decided he wanted to have all that money withdrawn they would have no choice but to allow
him to do that.” Dolliver testified that Henges had begun hiding things from her and her sister
and had recently set up a new cell phone account to prevent her from having access to his phone
records. Dolliver stated that Henges had told her he wanted to buy a car and a house. At trial,
Henges state that he wanted to “get the hell out of” the assisted living facility and wanted
to “go and buy my own damn place and run it.” In light of this testimony, a reasonable
factfinder could have formed a firm conviction or belief that a power of attorney would be
inadequate to provide the oversight needed to protect Henges’s financial assets given his
inability to make complex financial decisions. See In re Guardianship of Bruner, No. 05-18-
01006-CV, 2019 WL 2912236, at *3 (Tex. App.—Dallas July 8, 2019, no pet.) (mem. op.)
(concluding that power of attorney was not feasible alternative to guardianship of incapacitated
person because power of attorney would not provide complete control of money). The power of
attorney would only permit Dolliver to effectuate Henges’s wishes, not to override them.
The evidence supports the court’s determination that a joint checking account
would not be a feasible alternative to guardianship to protect Henges’s monetary assets. Again,
the court heard testimony that Henges lacks capacity to make financial decisions or manage
a bank account. There was testimony that Henges routinely carries large sums of cash and that
he has begun freely sharing personal financial information with strangers. Dr. Schillerstrom
testified that Henges’s condition made him particularly vulnerable to malfeasance of third
parties. Dolliver testified that, without a guardianship in place, if Henges decided he wanted to
withdraw all his money from a financial institution that institution would have no choice but
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to allow him to do that. A joint checking account would only provide Dolliver with access to
Henges’s funds, it would not allow her to protect the funds from his impaired decision making.
The court could reasonably have formed a firm belief or conviction that a joint checking account
was not a feasible alternative to a guardianship and would be insufficient to protect Henges’s
financial assets.
Guardianship of Henges’s Person
There was testimony at trial that Henges could not operate a motor vehicle safely.
Henges testified that he wanted to purchase a car and drive it. On appeal, Henges asserts that the
Texas Department of Public Safety’s review process is a reasonable alternative to guardianship
of his person and would adequately protect him and others from any danger related to his
operation of a motor vehicle. Henges maintains that because the DPS review process operates
independently of a guardianship and does not require a judicial finding of incapacity to refuse
to renew a driver’s license, that process constitutes a feasible less restrictive alternative to
guardianship. Henges does not challenge the court’s finding, based on the testimony of
Dr. Freeman and Dr. Schillerstrom, that he can no longer safely operate a motor vehicle.
Instead, he asserts that the DPS can evaluate his fitness to drive and, consequently, guardianship
is not necessary.
The Texas Estates Code expressly provides that the probate court must determine
“whether the proposed ward lacks the capacity . . . to make personal decisions regarding . . .
operating a motor vehicle.” Tex. Est. Code § 1101.101(c). Thus, the Legislature intended for
the probate court, not the Texas Department of Public Safety, to determine whether a proposed
ward has the capacity to drive. For its part, the DPS is required to defer to a judicial
determination of capacity. See Tex. Transp. Code §§ 521.319(a) (“A person may not operate a
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motor vehicle if the person: . . . (2) has been determined by a judgment of a court to be totally
incapacitated or incapacitated to act as the operator of a motor vehicle.”); .319(d) (mechanism
for court to notify agency of incapacity finding); .201 (department prohibited from issuing new
license to person found by court to be incapacitated). The statutory framework provides that
the probate court assess cognitive capacity and decision-making, whereas the DPS’s review
process addresses a range of medical conditions, including vision problems, reflex insufficiency,
or the risk of a sudden loss of consciousness. See, e.g., 37 Tex. Admin. Code §§ 15.51 (Tex.
Dep’t of Pub. Safety, Vision Tests); 15.57 (Tex. Dep’t of Pub. Safety, Restrictions, Physical).
It is not the purview of the DPS to evaluate or make a determination on whether an applicant
has the cognitive capacity to make a personal decision regarding whether or not to drive.
Instead, the Texas Estates Code requires that the probate court imposing a guardianship must
specifically address the ward’s capacity to operate a motor vehicle in its order. Tex. Est. Code
§ 1101.101(c). The court did not abuse its discretion in finding by clear and convincing evidence
that the DPS review process was not a feasible alternative to guardianship with respect to
Henges’s desire to operate a motor vehicle.
Henges also argues on appeal that the existing medical power of attorney is a
feasible alternative to guardianship even though he has been found to lack capacity to manage
his medications and make decisions about his medical care. But a medical power of attorney
can be revoked “at any time . . . without regard to whether the principal is competent or the
principal’s mental state.” See Tex. Health & Safety Code § 166.155(a)(1). Even if it were not
revoked, however, the court found that the medical power of attorney was not a feasible
alternative to a guardianship in this case, and the evidentiary record supports this finding. There
was evidence that Henges made independent decisions about what medications he would take
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that were contrary to the advice of his treating physicians, that Henges purchased and hid
medications in his room, and that he took medications that risked damage to his heart. Dolliver
testified that the existing medical power of attorney provides her with a way to carry out
Henges’s wishes, but not to guide them or oversee those decisions. See id. § 166.164 (statutory
form for medical power of attorney provides that “Your agent is obligated to follow your
instructions when making decisions on your behalf.”). Henges testified that he had been
“misdiagnosed” by six neurologists and psychiatrists and there was evidence that he sought out
medical opinions that would confirm his belief that he did not have any cognitive or executive
function impairment. The court could reasonably have formed a firm belief or conviction that a
medical power of attorney would not protect Henges from physical harm resulting from his
refusal to follow the medical advice of his treating physicians and in fact to contravene it.
Available Supports and Services as Alternative to Guardianship
Finally, Henges asserts that the probate court abused its discretion in finding that
the supports and services available to Henges were not a feasible alternative to guardianship.
See Tex. Est. Code § 1101.101(1)(E) (before appointing guardian court must find by clear and
convincing evidence that supports and services available that would avoid need for appointment
of guardian have been considered and determined not to be feasible). Henges argues that
Dolliver’s and her sister’s involvement and participation in his life is a support and service that is
a feasible alternative to guardianship and would continue to effectively protect his interests. The
evidence at trial, however, belies this assertion. Dolliver testified that although her support
and assistance had, in the past, been sufficient, over time Henges has resisted her efforts to
coordinate his medical appointments and care. Dolliver also testified that Henges had directed
certain service providers not to communicate with her and had threatened to revoke the medical
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power of attorney. There was testimony that Henges has become increasingly resistant to efforts
to treat what several physicians have described as a progressing cognitive impairment. Dolliver
testified that she is no longer able to sufficiently manage either Henges’s estate or his person
without having the formal authority of a guardianship and that she required the authority that
would permit her to receive and provide instructions related to Henges’s financial matters and
medical needs. A trier of fact could reasonably have formed a firm belief or conviction that
continuing the status quo and relying on Dolliver’s and her sister’s support and services was no
longer a feasible alternative to a guardianship. The probate court did not abuse its discretion in
making that finding.
CONCLUSION
For the reasons stated in this opinion, we conclude that the probate court did not
abuse its discretion by disregarding alternatives to guardianship that would avoid the need for the
appointment of a guardian. The evidence supports the court’s finding by clear and convincing
evidence that the alternatives to guardianship were not feasible. Accordingly, we overrule
Henges’s sole appellate issue and affirm the probate court’s guardianship order.
__________________________________________
Thomas J. Baker, Justice
Before Chief Justice Byrne, Justices Baker and Smith
Affirmed
Filed: December 8, 2021
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