Alternatives to Guardianship
Guardianship, often over-used, is a legal process designed to provide protection for adults who are deemed “incapacitated” under State law. The Probate 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.”
The Arc of DFW Area supports The Arc US position that:
- the vast majority of individuals with intellectual and/or developmental disabilities (IDD) can participate in their own affairs with supports, assistance, and guidance from others, such as family and friends.
- individuals with IDD should be aware of and have access to decision-making supports for their preferred alternatives. The personal autonomy, liberty, freedom, and dignity of each individual with IDD must be respected and supported. And each individual with IDD should receive the preparation, opportunities, and decision-making supports to develop as a decision-maker over the course of his or her lifetime.
The Arc of DFW Area also recognizes that some form of guardianship may sometimes be necessary; however a person should not be presumed to need a guardian simply due to the presence of a physical, cognitive and/or mental disability. If guardianship is necessary, it should be tailored to the person’s needs. Strict monitoring must be in place to protect the best interests and preferences of each person.
The 84th Texas Legislature passed four bills protecting the rights of persons with disabilities in the guardianship system. For the first time, the Texas legislature mandated that probate courts consider alternatives to guardianships and supports and services before a guardianship is created.
Let’s take a closer look at these bills.
HB 39 – Alternatives to Guardianship
Relating to guardianships for incapacitated persons and to substitutes for guardianships for certain adults with disabilities. House Bill 39 amends Estates Code provisions relating to guardianships for incapacitated persons and to substitutes for guardianships for certain disabled adults. Among other provisions, the bill requires the exploration of alternatives to guardianship that would avoid the need for the appointment of a guardian and provides for the review of a ward’s capacity to determine the ability of the ward to make certain decisions and the need to continue guardianship.
House Bill 39 enacts the Supported Decision-Making Agreement Act to authorize an adult with a disability to voluntarily enter into a supported decision-making agreement with a supporter as a less restrictive substitute for adults who are not considered incapacitated persons for purposes of establishing a guardianship.
SB 1881 – Supported Decision-Making
Senate Bill 1881 amends the Estates Code to establish the Supported Decision-Making Agreement Act under which an adult with a disability may voluntarily, without undue influence or coercion, enter into a supported decision-making agreement with a supporter. The bill, among other provisions, specifies the type of assistance a supporter is authorized to give under the agreement and the conditions under which a supporter is authorized to access certain personal information of an adult with a disability. The bill provides for the reporting of suspected abuse, neglect, or exploitation of an adult with a disability who has entered into an agreement.
SB 1882 – Bill of Rights of Wards
Senate Bill 1882 amends the Estates Code to set out the bill of rights for wards under guardianship. The bill establishes that a ward has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of Texas and the United States, except where specifically limited by a court-ordered guardianship or where otherwise lawfully restricted.
HB 1438 (Section 10) – Court-Initiated Guardianships
House Bill 1438 amends the Estates Code, Finance Code, and Government Code to update statutes relating to probate matters, including guardianship and other matters related to incapacitated persons. Among other things, the bill revises the requirements for setting a guardian’s bond, allows for the payment of fees and costs from any management trust for the person under guardianship, facilitates the ability of a person without a guardian of estate to sell property, and expands the proposed guardians for whom the procurement of criminal history record information is required to include a family member.
There is only one success… to be able to spend your life in your own way.Christopher Morley
Videos, Articles, Sample Forms & More
Images created through film and from stories of those closest to the issue can have a dynamic influence on the way we think and act. The following are recommended resources we believe may challenge your thinking about guardianship and alternatives to guardianship.
Supported Decision Making/Alternatives to Guardianship – In this video DRTx legal director reviews guardianship reform laws passed in Texas during the 84th Texas legislative session.
Supported Decision Making: Protecting Rights, Ensuring Choices – In this video Jonathan Martinis walks you through the importance of Supported Decision Making
Self-Determination Makes a Difference – Watch this video to learn how Self-Determination makes a difference in the lives of people with disabilities.
The Jenny Hatch Story – Jenny’s story highlights how one woman led the way in the Supported Decision Making Movement. This web-page is dedicated to the “Justice for Jenny” trial, Jenny’s writings and videos, and news stories about Jenny.
Alternatives to Guardianship for Adult Texans with IDD – by Megan Morgan
Education Decision Making When Your Child Turns 18 – by The Arc of Texas
Eliminating the Pervasiveness of Guardianship – by Dohn Hoyle
Guardianship and the Disability Rights Movement – by Diane Coleman & Tom Nerney
Below are a few examples of guardianship alternatives. The list of Less Restrictive Alternatives to Guardianship includes the alternatives below and others.
- Advanced Directives
- Declaration for Mental Health Treatment
- Directive to Physicians & Family or Surrogates
- Durable Power of Attorney
- Medical Power of Attorney
- Consent to Authorize Advocacy
- Person-Centered Planning
- Power of Attorney
- Social Security Representative Payee
- Supported Decision Making
National Council on Disability Report – Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination (March 22, 2018)
Consent to Authorize Advocacy – Sample forms to use with schools or other adult agencies to authorize parent participation in planning; from The Univ. of Montana Rural Institute.
Supported Decision Making Agreement – Sample Form
Supported Decision Making Release of Confidential Information – Sample Form