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Making informed decisions about guardianship and its alternatives

Many Texans have loved ones who need some assistance with life. It may be as narrow as needing someone to help pay bills and balance the checkbook or as broad as needing management of almost all aspects of life for someone with severe disabilities.

Guardianship option

We talked in our last post about the alternative under Texas law of guardianship of an incapacitated person. Texas allows for a guardianship of the person that gives the guardian responsibility for the personal and physical well being like medical care, medication, residential care, clothing, food and similar needs. Another kind of guardianship is the guardian of the estate, meaning the guardian manages the person's money, assets and property.

The court may appoint only one of these guardianship types or both. If both are established, the same person often wears both hats, but not always.

A guardian's responsibilities are serious and ongoing. The guardian must have regular contact with the incapacitated person, called a ward, to understand what needs and wishes he or she has. Depending on the type of guardianship, very important decisions are required to protect the individual's health, money, rights, daily needs and more.

Guardians are required to file annual reports with the court about the ward's health and living situation as well as annual accountings of how the guardian has spent, received and managed the money and assets of the protected person. The guardian may need to manage money and reporting requirements to maintain the ward's eligibility for public benefit programs.

Other options for caring roles

Some of you may have read a July 2016 Texas Observer journalistic exposé that detailed historical problems in the Texas guardianship system and current efforts at reform. The takeaway from this article for someone investigating how to best protect and help a loved one is:

  • Understand the Texas guardianship system in detail to determine if that is the right choice.
  • Investigate other legal alternatives that may be less restrictive, but still facilitates the protection of the vulnerable person.
  • If appointed a guardian (or another legal role), learn what your responsibilities are, engage professional guidance and assistance, and set up a system to help you meet your responsibilities.

A Texas statute lists some of the alternatives to guardianship:

  • Medical power of attorney
  • Durable power of attorney
  • Representative payee to manage public benefits
  • Joint bank account
  • Special needs trust
  • And others, including "alternate forms of decision-making based on person-centered planning"

The Texas Observer article discusses a recent state reform that is certainly person centered: supported decision-making, which is basically a contract between the person needing assistance and the person who will provide it, called the supporter. The statute emphasizes that the arrangement is to protect the "self-determination of the adult."

The Texas Council for Developmental Disabilities explains the new option on its website.

The supported decision-making agreement, unlike guardianship, does not need to be approved by a court. It is an agreement between the parties that spells out how the supporter will help the supported person make important life decisions by getting information and weighing options, considering risks and implementing the person's decisions. Either can terminate the agreement, it can contain a date on which it expires or the Texas Department of Family and Protective Services can step in if there are problems with the supporter's compliance or behavior.

The bottom line

It is imperative that if you face these difficult issues, speak candidly and at length with a lawyer to understand all the legal alternatives and which is most likely to provide the support needed by your loved one. The attorney can assist you with drafting, executing and filing any necessary documents, including those that may be required by the court. After your new role is established, legal counsel can help you understand and meet your responsibilities such as completing annual or periodic court or government forms and reports.

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Soraya Joslin, P.C.
1510 Santa Fe, Suite 500
Weatherford, TX 76086

Phone: 817-757-4194
Fax: 817-764-1990
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