### 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 TR AVIS COUNTY NO. C
- 1
- PB
- 19
- 000860 , THE HONORABLE GUY S. HERMAN , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is an appeal from the probate court ’ s order finding David Fa u lkner H enges incapacitated and appointing his daughter, Leslie Henges Dolliver , permanent g uardian with limited authority o ver his person and with full authority of his estate. In one issue, Henges

ass erts that the probate court abused its discretion by disregarding alternative s to guardianship and imposing a guardianship. We will affirm the probat e court ’ s order.

BACKGROUND Henges is a retired orthopedic surgeon . After his wife died in 200 9 , Henges lived with Dolliver and her family for approximately ten years. In 201 4, after Henges recovered from a bout of double pn e umonia and a cardi ac event that trigger ed his defib rillator pacemaker , Dolliver and her sister observed what they believed to be unusual and concerning behaviors on hi s part , specifically a change in Henge ’ s handling of hi s ret irement invest ments. At Dol liver ’ s2

urging, He nges submitted to a neurolo gical evaluation, which resulted in a diagnosis of mild dementia

. In 2015, the family updated Henges ’ s formal est ate

- planning documents, which included a durable power of attorney and a me dical power of attorne y that named Dolliver and her sister as co

- agents. In 2018, Henges suffered what he bel ieved to be a heart attack and

was hospi tal ized . After the hospitalization a nd a range o f diagnos tic procedures, his treating ph ysicians determined that he had an issu e with his gall bladder

. Dolliver observ ed that t he diagnos tic p rocedures , which included thre e an esthesia s , we r e difficu lt for Henges to tolerate and she believed caused Henges to have a diminished ability to care for himself . Dolliver and her sister d e termined that it was necessary to move Henges to a nearby as sisted living facility

. H enges lived in that facil ity for approximately six months until early 2019 when he moved to the newly o pen ed B elmon t Village, where he currently resides.

In March 201 9, Dolliver and her sister filed a joint application for limited guardianship of Henges ’ s person. The applica tion alleged that He nges, who was then eighty

- one years old , had been diagnosed with vascular dement ia w it h del usions and that his condition was

suc h that he was incapable of managing his personal, m edical, legal, and financial affairs

. The applic ation alleged tha t an existing management trust created and funded pursuant to a S tatutory Durable Power of Attor ney granted to Dolliver was at that time a l ess restr ictive alt ernative to guardianship of Henges ’ s estate , but that an existing Medical Power of Attorney had proved insufficient to protect Henges from making decisi ons against his o wn interest. The application further alleged that Henges refuses m e dical advice and treatments f rom his doctors and th reatens
to re voke the Medical Power of Attorney , and that Henge ’ s phys ician , Dr. Matthew Freeman, advise d Dolliver to seek guardianship o f Henges ’ s person because the p h ysician was no longer comfortable r e lying on the authority granted by the Medical Power of Attorney.3 The application was supported by a report from Dr. Freeman, a

ne uro psychologist, who s tate d that Henges had been diagnose d with mil d cognitive impa irment and suspected dementia in 2014 by D r. Bertelson, who Henges r ep l aced with Dr. Devere becau se Henges disagreed with the diagnosis. Dr. Devere conf irmed the diagnosis , prescribed an Exelon patch, and conducted an additional te st to determine “ if Alzh ei mers was part of the problem. ”
Dr. Fre em an s tated that the resu lts 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
pres criptio n r an out, Henges contacted an old friend who was a neurolog is t, Dr. Phi l Leonard.
Dr. Freem an stated that Dr. Leonard refil led the pres cription for a couple of years without
p ersonally evaluating Henges and that Dr. Leona rd ’ s Texas m edical l icens e had been revoked by the Texas Medical Board in Jun e 2018.

Dr. Fr eem an reported that Henges underwent a cognitive evaluation in August
201 8 and that a fter reviewing that evaluation and the totality of the testing done over the past five years , and after c ondu cting multip le per sonal inter views, he believed that Henges is an

“ extreme case ” who refuses to acc ept his diagnosis an d has made an appointment with y et another neurologist . Dr. Freem an stated that although Henges had appointed Dolliver and her si ste r as his c o - agents on his medica l power of attorney, he is “ very c omb ative w ith them and refuses to give up the drivers ’ license tha t he managed (with the help of a well

- meaning friend ) to ge t r ep laced in February [2019]. ” Dr. Freeman r ecommended tha t the daughters seek a guard ianship so they c ould prevent him f rom driv ing , which presents a danger to himself and others, and so that they c ould prevent Henges from following throu gh on his threat to re voke the medi c al power of attorney i f they do not follow hi s wishes. Dr. Freeman opined that Henges is “ impaired and needs to ultimately have someone in charge of making sound medical4

decisions for him. ” The applica t ion was a lso suppor ted by Dr. Freeman ’ s Certificate of Medical Examina tion in which he diagnosed Henges with va s cular dement ia with delusions with a prognosis of gra dual continued progression.

In re spon se to the application , Henge s retained an attorney, Don Ford, to represent him an d r equested that the court appoint Ford as Henges ’ s guardian ad lit e m and

s tated that he opposed the guardianship because he was n ot in c apacitated and , even if found
to be inc apacitated, available supports and services were suffici en t to avoid the need for a guardian ship.
A t a September 2 0 19 hearing on the appl ication , t he court he ard testi mony that fo cused on the issue s of He nges ’ s r esi dence, medical care, and desire to continue driving.
At the time, Dollive r did not seek guardianship of H enges ’ s estat e b ec ause she believed the management tr ust provided s uffic ient protection , specifi cally bec ause the bro ke rage firm “ ha [d] the dement i a di agnosis on file ” and knew to call her if there was unu sual activity. Dr. Freeman
test i fied about his diagnosis of mild vascular dementia with “ a possible com ponent of
Alzh eimer ’ s d iseas e. ” He stated that he had wit nessed Henges having “ delusional th o ught s in clinic , ” which he d escr ibed as “ firmly held false belie fs. ” Dr. Freeman testified that his diagnosis was consistent with the reports of other n eurol ogists wh o had examined Henge s.

The court heard testimony from Dr. Edwar d Gripon, a forensic ps y chia trist , who opined that Henges was not inc apacitated. He t estified that Henges was no more vulnerable to being taken advantage of than othe r people and th at Henge s wa s capa ble of administ ering his own medica tion , al though he agreed that Hen ges “ may not a gr ee with all of them ” and that Henges might not take medica tions prescribed for dementia if he did not agree with th e diagn osis. Dr. Gripon testified th at He nges di d not want to continue to live at Belmont Village5

and wants to go back to a l ess restric ti ve en vironment. After Dr. Grip o n finis hed testif ying , th e court recessed the hear ing

.

After the hearing, Dol l iver filed a motion askin g the court to a ppoint Dr. Jason Schillerstrom to perform a n independent me dical e xamination. See Tex . Est

. Code § 1 101. 103 ( providing that if court determines i t is necessary, court may appoint physician to examine
pr oposed ward). Henges agreed to th e examination an d the parties also agreed tha t H enges

wou ld not drive a car whil e the case was pending and would be acco mpan ied by a representative of a temporary guardi an service at all medi cal appointments. Dr . Schiller strom perf ormed the

me dical evaluation and s ubmitted a re port to the co urt. Dr. Schi llerstrom ’ s evaluation of Henges ’ s mental functioning included a diag nosi s of “ Major Neuro cognitive Disorder, secondary to cerebro vascular d isease ” of mild severity with a poor prognosis. He stated that it wo uld be
in Henge s ’ s best interest to be placed in a secure facility for the el derly or in a secure nursing fac ility t hat specialized in the care an d treatment of people with dem entia. Dr. Schillerstrom also stated that Henges did not ha ve suff icient capacity t o give informed consent to the adm inistration of dementia medication, which he found would be in He nges ’ s best i nter e st to take. Dr. Schillerstrom found that Henges had deficits in short

- term memory, problem s o lving, reasoning logicall y, grasping abst r act aspects of his situation, and breaking down complex tasks into simple tas ks and carrying them out. Fina lly, wh ile Dr. Schillerstrom concluded that Henges could attend to basic activit i es of daily living, such as b athing and dressing, he

was not able t o initiate an d make res ponsible decisions regarding complex financial decisions, managing a bank account, op e rating a m otor veh icle , con senting to medical treatment, or determining his own residence.6 There after, Dolliver amended t he app lication to seek guardian ship no t only of Henges ’ s person, but also of his estate. Dolliver alleged that “ it has become ap par ent tha t ce rtain

asse ts cannot be adequately pr otected or manage d using a trust or other les s restrictive means ” and that He nges h ad repeated ly told Dolliver that she ha d gone beyond the power he gr anted her in the S tatutory Durab le Power of Attorney in 20 15 and t hr e aten ed to revo ke it. Dolliver also all eged that after she rec eived an alert about account activity related to He nges ’ s Roth IRA, the finan cial institution holding th e account “ made it clear to her that in order to protect [Henges] from being ab le to t ake a distr ibution from his Ro th IRA account, they would need a court order or authority f

rom a legal guardi an of [He nges ’ s] estate

. ” The probate court resumed the hearin g on the gua rdianship application in May 2020. The court heard testimony fro m Dr. S chil lerstrom , Dolliver, and Henges, and
Dr. Gripon gave additional testimony . The court formal ly received the written report of its cou rt inve stigator , who con cluded that , based on the medical evidence, less restrictive altern atives to the appointm ent of a gu ardian of Henges ’ s person and estate were not f easible or appro priate.
Dr

. Schillerstrom testi fied that the natura l course of Henges ’ s illness made it increasingly difficult for him to make re a sonable choices and that his de ficiencies in “ execu tive fu ncti oning ” affected “ thin g s like fin ancial oversight [and] medication mana gement

. ” Dr. Schillerstrom emphasized that e xecutive func tion, rather than memory, is what predict s a person ’ s abi lity to care for on e ’ s self and that Henges ’ s deficien t exec utive f unct ion impeded him from making complicated business or financial decisions for himself.

The day after the hearing co n cluded, the cour t anno unced its rul ing that, based on a review of the record, it foun d by clear and convincing evidenc e that Heng es was part ially incapacitated and that, “ although he is pretty close to being totally incapacitated, he does have7

the abil ity to vote, and I ’ ll let him have the right to vote. ” The court stated that it would be
gran ting a l imited guar dianship of the pers on and a fu ll guardian ship of the estate. T he c ourt si gned an o rder appointing Dolliver guardian of Henges ’ s person with limi ted authority and
g uardian of Henges ’ s estate with full authority. The court ord ered that Dolliver post a $700,000
bond , that Hen ges be allo w ed to manage a personal allowance of $300 per month for personal expendi tures, and that Dolliver su bmit annual rep orts of the person and an annual account to the
court

. At Henge s ’ s request, the court filed fi ndings of fact and con clusions of l aw. He nges then perfe cted this appeal.

DISCUSSION

The Legislature has d etermined th at a court shall appoint a guardian for a person

o ther than a minor according to the circumstances and considering the best in terests of the ward.
Tex. Est

. Code § 1 104.101

. Be for e appointing a guardian, the court must find by clear and convincing evidence that: (1) the ward is an incapac itate d pers on; (2) it is in the best intere st of the ward to have the court appoi nt a guardi an; (3) the righ ts o f the ward o r the ward ’ s pro perty will be protected by the appointment of a guardian; and (4) alternatives to guardianship and supports and serv ices availa ble have been considered and dete rmi ned to be infeasible. Id. § 1101.101 (a)(1)

. The pro bate court made the following findings o f fac t and conclusions of law:

FOF 5: At trial on September 26, 2019, the testimony indicated that the alternatives to guardia nship currently allowing [Dolliver] to manage [Hen ges ’ s ] personal and medical care, inc luding the Medical Power of Atto rney, were no l onger protecting [Henges]. For example, [ Henges] would diagnose himself with a condition, then order medicatio ns and hide them in his room at Belmont Village, against the rules and against the medical adv ice of his treating p h ys icians. [He nges] also insis ts on dosing his own medications , a practice that was against m edical advi ce, against the rules at B el mont , an d which the testimony indicated r isked damage to h is h eart. Finally, [Henges] ha d at times made th reats to re voke his Medical Pow er of Atto rney.8

FOF 6: Dr. Blake Freeman, a neurologist and one of [Henges ’ s ] treating physicians, testified a s the expert wi tness for [Do lliver ] and [Dolliver ’ s sister]. Dr. Freeman dete rmined that [Henges] suffers from vascular deme ntia, which causes c ognitive d eficits and executive dysfunctions. According to Dr. Freeman, [Henges] does not have the cognitive ability [to] mak e his own fin ancial decisions, manage his medications and medical care, or operate a motor vehicle. Dr. Freeman, as one of [Henge s ’ s ] treat ing phys icians, has performed extensive medical testing and re v i ewed a multi tude of medical records. Dr. Freeman co nfirmed to thi s Court that several other neurologists concurred with Dr. Freeman ’ s diagnos is of [Henges]. The Court found Dr. Fre eman ’ s tes timony i n this case to be cre dible. FOF 7: Dr. Edward Gripon tes tified that he interviewed [Henges] for approximate ly t wo or thre e hours a nd reviewed medical records provide d by [Henges]. Dr. Edw ard Gripon conc luded that [Henges] suffers little cognitive impa irm ent. FOF 10: Dur ing the pause in trial after September 26, 20 19, [Henges] acted in ways that jeopardi zed his retirement ac counts. I n addition, [D olliver] was una b le with her existing authority to fully protect the mont hly income from [H enges ’ s ] v e teran ’ s pension. FOF 18: Dr. Jason Schill erstrom, the neurologist chosen by the Court , testified about his examinat ion of [Henges] and his diagnosis of major neuro cognitive disorder, secondary to cere bro va scular disease. D r . Schillerstrom dete rmined tha t [Henge s] had lost his executive functioning abilities, which left hi m unable to make complex decis i ons for himself, determine his resid ence, make medical decisions, or drive a motor vehicle, amon g other things. The Court found Dr. Schillerstro m ’ s testim ony to b e credible. FOF 19: D r. Edward Gripon again testified that [Henges] suffered little cogni tive impairment. T he Court was no t persuaded by Dr. Gripon ’ s testimony in this case. FOF 20 : [Henges] testified to his belief that he has been mis diagnosed by multi ple doctors and to his belief that he does not suffer from any cognitive impairment. [Henges] testified that he wants to pu rch ase and dri ve a car an d purchase a home to live in by hims e lf. [Henges] was adamant about his right to vote. F OF 21a: [ Henges] is a partially inc apacitated person without capacity to care for himself, to manage his property, to make per sonal decisions regarding his reside nce, and to operate a motor vehicle. FOF 21c: Alternatives to guardianship and support and s ervices av ailable to [ Henges] that would avoid the need for the appointment of a guardian have been considered and determ ined n ot to be feasib le.9

FOF 22c: [Henges] lacks capacity to do some, bu t not all, of the tasks neces sary to care for himself with or without su pports a nd services as indicated by his mental and physical limitations as evidence d by recurring acts with in the pre ceding six months and cont inu ing to this date. FOF 22d: [Henges] lacks sufficient capacity with supports and services to make pe rsonal dec isions r egar ding his residence, operating a motor vehicle, and marriage.
On appeal, Henges d o e s n o t challenge t h e pro bate court ’ s findings re la ted t o Henges ’ s capacity to care for himself or to make medical or fina ncial d ecisions. Rather, he asse rts only that the
court “ abused its discretion by disre garding alt ernatives to gu ardianship ” and challenges the
court ’ s fin ding that alternatives to guar dianship either do not e xist or ar e in suf ficient to protect his interests. Hen ges ar gues that the less er restri c tive al terna tives to gu ardianship t h at the court

“ disregarded ” include a medical power of attorney, a durable power o f attor n ey, and a family
l imited partnership and trust.

Dolliver count ers that the ev id ence and the record demonstrate that the family h as
attem pted and exhausted the alterna tives to guard ia nship. She mainta ins that the court heard evidence from an inde pendent geri atric psych iat rist , considered the report of its court investigator, and heard test i mony from Henges and other ph ysic ians a bou t altern ativ es to
gu ardianship. Dolliver asserts that the probate court was within its discretion to dete r m ine th at
t he proposed alterna tives t o guardianship wer e no longer feasible or sufficient to protect Henge s ’ s interests.

Standa rd of Review

We rev iew an o rder imposing a guardianship for an abuse of discretion. In re Guardianship of Boatsman , 266 S .W.3d 80, 88 (T ex. App.

— Fort Worth 2008, no pet.)

. “ In
gu ardianship proceedings especially, the heav y res ponsibility for determin ing t he best r esolution10

o f fund amental and emotional issues lies necessar ily within the trial court ’ s sound discretion. ”
In re Thetford , 574 S.W.3d 362, 380 (Tex. 201 9) . This Court ’ s review of such a proceeding must be “ singular ly mindfu l of the trial court ’ s unique o pportunit y and res ponsibility to assess the circumstances presented. ” Id. A trial court abuses its d iscretion if it acts in a n arbitrary

or unreasonabl e manner without reference to any guiding rules o r principles. Low v. Henry , 221 S.W.3d 609, 61 4 (Tex. 2007)

. A trial c ourt also abuses its discretion by ruling wi thout
suppor ting evid ence. 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 eviden ce and some evid ence of s ubstantive and probative charac ter supports its decision

. Unifund CCR Partners v. Villa , 299 S.W.3d 92, 97 ( Tex. 2009)

.

In guardians hip proceedings, legal and factual sufficien cy of the evidence are
not indepen dent, reversible g rounds o f error; instead, they are factors to consider in assess ing whet her there wa s an abuse of discretion. I n re Guardi anship of A .E. , 552 S.W.3d 873,
877 ( Tex. App.

— For t Worth 2018, no pet.)

. B ecause the required findings in a guard ianship proceeding must b e support e d by cle ar an d conv incing evidence, in a legal sufficiency review, we vie w the e vidence in the light most favorable t o t he trial court ’ s decisi on to determine whether a reasonable trier of fact could have formed a firm belief or con viction that i ts fin din gs

w er e t rue. In re Boatsman , 266 S.W.3d at 85

- 86 . In the legal sufficiency context, an abuse of discretion does not occur when the t rial cour t ’ s decision is based on conflicting evidence. In re
A.E. , 552 S.W.3d at 877

.

In addressing a fac tua l suffici ency ch al lenge, we must consider all the evide nce in the record

— both in support of and contrary to the trial court ’ s f indings

— to determine wheth er a fact finder could reas on ably fo rm a firm b elie f or conviction about the truth of the findin g. I n re11

Boatsma n , 266 S

. W.3d at 86 . If the disputed evidence is so significant that a factfinder could
not have formed a firm belie f or conviction in the tru th of the trial court ’ s fin dings, then the

e vidence is factually insufficient. I d. The trier o f fact is the exc lusive ju dge of the credibi lity 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 define s “ altern ativ es to guardianship ” to include the following:
(1) execu tio n of a medi cal power of attorney under Chapter 166, He alth and Safety Code; (2) appointment o f an attorney in fact or agent unde r a durable power of attorney as provided by Subtitle P, T itle 2; (3) ex ecution of a declaration for mental health treatment und e r Chapter 137, Civi l Practice and Remedies Code; (4) app ointment of a rep resentative payee to manage public benefits; ( 5) estab lishment of a joi nt bank account ; (6) creati on o f a management tr ust under Chapter 1 301; (7) creation of a special needs trust; ( 8) designa tion of a guardian before the ne ed arises under Subchapter E, Chapter 1104; and ( 9) establishment of altern ate forms of decision

- making based on per son - centered planning.

Tex. Est

. Code § 1002.0015

. Henges argues th at his current estat e plan ning arrangeme nt s
const it ute “ alternative s to gu ardianship ” sufficient to avoid a guardianship of his estate

. Specifically, He nges points to a fin ancial 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 trial12

court ’ s fin ding that the se w er e no longer feasible alternatives to guard ianship of his esta te was

no t suppor ted by clear and con vincing evi dence. With regard to guardianship of his person, Henges a rgu es that the pr incipal co ncern articulated at trial was that he w as no longer ab le to

sa fely operate a motor vehicle , administer medications and make decisions abou t his m edi cal
treatment , or ad dress personal hygi ene issues related to incont inen ce. He nges argues that

re asona ble a lternative s to guard ianship ex is t to address these concerns , including the T exas Department of Public Sa fety ’ s medical review process and a medical p ower of attorney he has e xecuted

. Henges contend s tha t the trial court ’ s finding th at these were not reaso nable alternatives to a gu a rdianship of his person was not supported by clear an d convincing e v idence.

G u ardianship of Henges ’ s Estate Evidence was presented at trial that the majority of Henge s ’ s financial assets , includ ing real estate an d a broker age account, are held in a family partnership and tru st that he

cr eated in 2015. The trust does not, however, include Henges ’ s IRA retiremen t account or the military retirement benefits he receives monthly

. Henges argues on appe al that , although th e court ha s found him to be incapacitated, alternatives to guardianship exist that would sufficiently
pr ote ct the fina ncial assets that are not inc lude d in the family partnership and tru st. Hen ges

as sert s t hat Dolliver could man age th o se fund s using her p ower of at torney and that the funds could be deposited in a bank a c count held joi ntly by Dolliver an d He nges. Dolliver test ifie d, however, that ei ther of these alternatives would leave Henges with formal legal authority to make fina nci al d ecisi ons about t hese funds

. Dolliver testified t hat as a joint bank ac c ount ho lder or a person with Henges ’ s power of attorne y , her authority would be limited to offering ad vice to Henges. Dol liver s tate d that by May 2020 , the power of attorney was n o longer a feasible alternativ e because an independent ger iatric psychiatri st had d etermined that Henges lacked the13

capacity to m a ke complex business decisions. She t estif ied that t he financial institution holding
He nges ’ s IRA retir ement ac count informed her that without a g uardianshi p in place if Henges

“ decided he wanted to have all that money withdrawn they would h ave no choice b ut to allow him to d o that. ” Dollive r testified that H enges had begun hiding things from her and her sist er and h ad recently set up a new cell ph one accoun t to prevent her from hav ing access to h is phone records. Dolliver sta ted that Henges had told her he wanted to buy a car and a house. At tria l, Henges state that he want ed to “ get the hell out of ” the assisted living facili ty and w a nted
to “ go and buy m y o wn damn place and run it. ” In light of this tes timony, a reasonab le factfinder could have formed a firm conviction or belief that a powe r of atto rne y would be ina dequate to pro vide the oversight needed to pr otect Henges ’ s financial assets giv en his ina bility to make complex financial decisions. See In re Gu ardianship of Bruner , No. 05

- 1 8

- 0 1006

- CV, 2019 WL 2912236, at *3 (Tex. App.

— Dallas Jul y 8, 2 019, no pet.) (mem. op.) (co ncluding that power of attorney was not feasible alternative to guard ianship of inc apacitated
per son because power of attorney would n ot provide co mplete con trol of money). The p ower of attorney would only permit Dolliver to effect uate Henges ’ s wishes, not to o verride them.

The evidence supports the court ’ s determination that a jo i nt check ing account would not be a feasibl e alter native to guardianship to protect He nges ’ s monetary ass ets. Again, the court heard testimony that Heng es lacks c apacity to make financ ial decisions or mana ge

a bank acc ount. There was testimony that Henge s routinely c arries large sums of cash and that he has begun freely sharing personal financial information with stra ngers. Dr. Schillerstrom testified t hat He nges ’ s condition made hi m particularly vul nerable to malfeasance of third
par t ies

. Dol liver test if

ied that , w ithout a guardianship in place, if He nges decided he wanted to withdr aw all his money from a financial instit ution that institution would ha ve no choice bu t14

to allow him to do that. A joint checking account would only provide Dolliv er with ac cess to Henge s ’ s funds, it would not allow her to protect the funds from his impaired decision making. The co urt cou ld rea sonabl y have formed a firm belie f o r con viction th at a joint checking account

was n o t a feasible altern ative to a guard ians hip an d wou ld be insufficien t to protect He nges ’ s financial asset s.

Gu ardianship of Henges ’ s Person There was te stimony at trial that Henges could not operate a m otor vehicle safely

. Henges testified tha t he wanted to purchas e a car and drive it. On a ppeal, H enge s asserts tha t the
T e xas Department of Public Safety ’ s r eview process is a reasonable al ternative to guardianship of his person and would adequately p rot ect him and others from any danger related to his operation of a motor vehicle. Henges mai ntains that because the D PS review process ope rates independently of a guard ians hip and does not require a judicial f inding of in capacity to refuse
to renew a driver ’ s license, that process constitutes a feasible less restrictive alternative to guard ianshi p. Heng es d oes not chall enge the court ’ s finding, b ased on the test imony of
Dr. Freeman and Dr. Schillerstrom, that he can no longer safely operate a motor veh icle. Instead, he a ssert s that the DP S can evaluate his fitness to drive and, consequently, gu a rdianship is not necessary

.

T he Texas Estates Code expressly provid es that the probate court must determine

“ whether the prop osed ward lacks the c apacity . . . to make personal decisions regarding . . . operating a mo tor vehicle. ” T ex. Est. Code § 1101. 101(c)

. Thus , the Legisla ture intended for the pro bate court, not th e Texas Departmen t of Public Safety, to determine whether a proposed

wa rd has the capa city to dr ive. For its part, the D PS is required to defer to a judicial determination of c apacity. See Tex. Tran sp. Code § § 5 21.319(a) ( “ A person may not operate a15

moto r vehicle if the person: . . . (2) has been determined by a judgment of a court to be totally
in capacitated or inca pacit ated to act as th e operator of a mo tor vehicle. ” ) ; .319(d) (mechani sm for court to notify age ncy of in c apacity fi nding); .201 (dep ar tmen t prohi bited from issuing ne w license to person found by court to be incap acitated). The sta tu t ory framewo rk provides tha t the probate court assess cognitive capacity and decision

- making , whereas th e DPS ’ s review process addresses a range of medi cal con di tions, including vision pro blem s, re flex insufficien cy, or the risk of a sudden loss of consciou sness. See , e.g. , 37 Tex. Admin. Code § § 15. 51 (Tex. Dep ’ t of Pub. S afety, Vision Tests); 15.5 7 (Tex. D ep ’ t of Pub. Safety, Restrictions, Physical).
It is not th e purview o f the DP S to eva luate or make a determin ation on whether a n applica nt has the cogn i tive capacity to make a personal decision regarding whether or not to drive. Instead, the Texas Estates Code requir es t hat the probate court imposing a guardi anship must specifically address the ward ’ s c apacity to o perate a motor vehicle in its order. T ex. Est. Code § 1101.101(c)

. The court did not abuse its discretion in fi nding by clear an d convincing ev ide nce that the DPS review process was not a feasible alternative to guardianship with respect to Henges ’ s desire to o perate a motor vehicle.

He nges also a rgues on appeal tha t the existing medic al power of attorney is a feasible alternativ e to guardiansh ip even thou gh he has been found to lack capacity to ma nage his medications and make de cisions about his medical care

. But a med ical power of attorney

can be revo ked “at any time . . . without regard to whether the principal is competent or the principal ’ s mental sta te. ” See Tex. Health & Safety Code § 166.1 55(a)(1)

. Even if it were not revoke d, howe ver, the court found that the medical power of atto r ney was not a feasible alternative to a guardianship in this case , and the evidentiary rec ord supports th is finding. There was evidence that Henges made ind epe ndent decisions abou t what medications he would take16

that were contrary to the advi ce of his tre ating physicians , that Henges purchased and hid med icat ions in his room, and that he took medications tha t risked damage to h is heart. Dolliver testified that t he e xis ting medical power of attorney provides her with a way to carry out Henges ’ s wishes, but not to g uide them or oversee those decisions

. See id. § 166. 164 (statutory form for medi cal power of at torney pro vides that “ Your agent is obligated to follow your ins tructions when making decisions on your behalf. ” ). Henges testified that he had been

“ misdiagno sed ” by six neurologists and psychiatrists and there was eviden ce that he sought out medical opi nions that would conf irm his belie f that he did not have any cog nitive or executi ve function impa irme nt. The court cou ld reasonabl y have formed a f irm belief o r conviction that a medical power of attorney would not protect Henges from physi cal harm result ing f rom his refusal to follow the medical advi ce of his tr eatin g physicians and in fact to con t ravene it

. Available Supp or

ts and Services as Alternative t o Gu ardianship Finally, Henges asser ts that the probate court abused its discretion in finding tha t the supports and service s av ailable to Henges we re not a feasible alternative to guardian sh ip.
See Tex. Est. Cod e § 1101.101(1)(E) ( befo re appointing guardia n court mus t find by clear and convincing evidence that supports and services ava ilable that woul d avoid need for appoi ntment of guardian have bee n consid ered and d etermined not to be feasi ble). Henges argues that Doll iver ’ s and her sister ’ s involvement a n d participation in his li f e is a support and serv ice that is a feasible alter nat ive to guardians hip and would contin ue t o effectivel y protect his i nterest s. The evid ence at trial, however , belies this asse rtion. Dolliver testif ied that although her supp ort and assistance had, in the past, been sufficient, over time Henges has resist ed her e fforts t o coordinate his medical appointments and care. Dolliver also testif ied that Henges had dir ect ed certain service pro viders not to communicate with her and had threatened to revoke the medical17

power of attorney. T he re was testi mony that He nges has become increasingly resistant to efforts
to treat what s everal physicians have des cribed as a progr essing cognitive impairment

. Dolliver testified that she is no lon ger able to sufficiently manage either Henges ’ s esta te or his person without h avi ng the formal au thority of a guardianship and that she required the authority that

w ould pe rmit her to receive and provide instruction s related to Heng es ’ s financial matters a nd medical nee ds. A tri er of fact could reasonabl y have formed a firm belief or conviction that continuing the status quo and re l ying on Dolliver ’ s and her sister ’ s suppor t an d services was no lon ger a fe asible altern ative to a guard i anship. The probate court di d not abuse its discretion in making that finding.

CONCLUSION

For the reasons stated i n this opinion, we conclude that the probate court did not abuse its discre tion by disregarding alternatives to guard ianship that would avoid the need for the appointment of a guard ian . The evidence su p ports the court ’ s finding by clear an d convincing evi d ence that th e altern atives to gu ardianship were not feasible. Accord ingly, we overrule Henges ’ s sole appella te issue and affirm the probate court ’ s guardiansh ip order.

______________________________ ____________ Thomas J. Baker , Justice Before Chief Justice Byrne, Justices Baker and Smi th Affirmed Filed : December 8, 2021