What to Do When Your Loved One Does Not Meet the Court’s Strict Guardianship Requirements; Why We Need Guardianship Alternatives
Texas courts look for ways to provide less restrictive guardianship alternatives while offering needed safeguards for those who are disabled. Texas is a strong advocate for personal freedom and a protector and defender of individual rights. Guardianship takes away rights from citizens who are incapacitated. The courts take their responsibility seriously and expect us to find guardianship alternatives prior to asking for a guardianship.
The Texas Estates Code defines Guardianship as a legal process used to provide protection for adults who are incapacitated. The Estates Code defines an incapacitated person as: “An adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter to himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.”
As a parent of a disabled child who turns 18, as a child of an elderly parent who becomes disabled, or as a friend or relative of an incapacitated person, you can be in a very difficult situation. You want to protect your loved one, but the courts are reluctant to create a guardianship. There are some alternatives you can look at to see if there is something that will work in your situation. You can also explore services.
In June of 2015, the Texas Legislature enacted a new chapter to the Texas Estate’s Code. This new chapter allows an alternative to Guardianship called Supported Decision Making. This allows an adult with capacity and with a disability to willingly enter into an agreement with another adult (Supporter) wherein the Supporter provides assistance in making life choices, such as housing, financial, employment and medical decisions.
- Allows the disabled adult to maintain self-determination;
- May allow the Supporter to obtain information to assist the disabled adult.
- Does not account for certain disabilities which would limit comprehension of the consequences of actions;
- May not be accepted by all entities due to other laws, including HIPAA;
- Allows the disabled adult to obtain information without sharing it with Supporter, which can hinder the Supporter from providing proper support;
- Can be revoked with no new Supporter in place, leaving the disabled adult without support.
- Allows an additional Supporter if the disabled adult determines there is a conflict of interest which can hinder the Supporter from providing proper support.
Powers of Attorney
In an adult has capacity, they can execute Powers of Attorney for Medical or Financial decisions. These documents can take effect immediately or upon incapacity, depending upon the choice of the person signing them.
- Powers of Attorney allow you to designate the person you choose to handle things for you;
- If necessary, you can change the person you have designated;
- If not done properly, the Power of Attorney may not be valid. There are forms available on-line for everything, but it is well worth the small cost to have a qualified attorney draft and prepare your Power of Attorney;
- Although they are supposed to be good forever, some doctors and financial institutions will not accept a Power of Attorney that is more than 5 years old. At this point, if you are incapacitated, you will not be legally able to execute a new one;
- If an attorney believes the person does not have capacity, he/she will not prepare the Power of Attorney.
Directive to Physicians (Living Will)
A Directive to Physicians may be signed by an adult with capacity. This document tells your doctors whether you want to have all possible treatment or be kept comfortable in the event of a terminal or irreversible condition.
- Gives you a seat at the table when they are deciding things like whether to keep you on life support.
- Saves your family the stress of trying to decide what you would have wanted.
- It is permissive, so the ultimate decision will be made by the doctors (or the hospital ethics committee);
- Cannot be executed by an incapacitated person.
There are many types of trusts, including Special Needs Trusts, Pooled Trusts, Trusts of Intellectually Disabled (MR) Persons, so it is possible you will find the one that fits your needs.
- Properly written trusts protect Medicaid benefits;
- Properly written trusts can help avoid the need for a guardianship.
- Improperly written trusts can render the person ineligible for benefits;
- Improperly written trusts and even properly written trusts cannot address every possible situation.
When Alternatives Don’t Work
You may find that the places you contact are unwilling to talk to you without a guardianship, even if you have other alternatives in place. You may find that an attorney is unwilling to prepare documents for the disabled person to sign because he/she does not believe the person has capacity.
If these or any other obstacles block your way, then keep good records so that you can demonstrate clearly to the judge that you are unable to communicate to obtain services and information. Right now, the trend is for the courts to expect that you have exhausted all possible alternatives to guardianship. Click here to see a comprehensive list of alternatives prepared by the Tarrant County Probate Court
Since the judge may be reluctant to grant a guardianship, make sure you are well prepared with documentation and witnesses. Show the judge that a guardianship is not only the best option, but may be the only option for your loved one.
For more information about guardianship and guardianship alternatives, contact our office.