Oct 18, 2021
In this blog we will explore Guardianship Alternatives and safeguards for those who are disabled. Expert
Fort Worth guardianship attorney,
Bob Leonard
discusses 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.
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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.
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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.
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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.
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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.
Bob Leonard Law Group, PLLC
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