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Guardianship Reform

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Our Position

FOR SB 31 (Zaffirini): Relating to establishing a guardianship abuse, fraud, and exploitation deterrence program. A guardianship compliance program at the Office of Court Administration will indicate important information about cases of neglect or abuse of seniors and people with disabilities under guardianships.

A bill to establish such a program passed both houses in 2017, but was vetoed by the Governor. However, key legislative staff have indicated that the need for such a program is now better understood among leadership, and we are therefore better positioned to establish a guardianship compliance program in 2019.

The Latest

Jan. 2019: Office of Court Administration released their report, Texas Guardianship Reform: Protecting the Elderly and Incapacitated, which recommends passage of SB 31.

Partners

AARP
Guardianship Reform and Supported Decision Making Workgroup

Background

Through the early 2010s, CTD and a number of our partners noticed a growing problem. Older Texans and people with disabilities found themselves in situations where they were no longer in control of their assets and living situations. Or they had been legally cut off from family members for reasons no one could ascertain. These individuals had been placed under guardianship, a legally binding agreement that allows a person (the guardian) to make major decisions for another person (the ward). The Office of Court Administration reports that 51% of people under guardianship have I/DD (source: Texas Guardianship Cases report).

State Senator Judith Zaffirini had already laid groundwork to show that an alternative was possible: in 2009, she passed a bill to launch a supported decision-making pilot program in San Angelo. The pilot demonstrated how volunteers could support individuals with intellectual, developmental, and other cognitive disabilities in making decisions about their own lives. It also helped avoid several court-initiated guardianships.

However, with the number of legal battles regarding guardianship still on the rise, CTD and our partners formed the Guardianship Reform and Supported Decision-Making Workgroup (GRSDM) at the end of the 83rd Legislative Session (2013) and spent the following year and a half developing clear, targeted policy goals for 2015. Group membership consisted of a wide swath of key players at several different levels of government and advocacy. In 84th Legislature (2015), GRSDM worked on a number of legislative items to improve guardianship alternatives and access to them. That year, Texas became the first state in the country to formally implement supported decision-making (SB 1881, Zaffirini), in addition to passing a number of guardianship reform measures:

Creation of a Bill of Rights for a person under guardianship or proposed person under guardianship. These include the right to: live, work, and play in the most integrated setting, visit with people of their choice, appear before the court to express their preferences or concerns, and petition the court and due process. (SB 1882, Zaffirini; HB 1438, S. Thompson).
Establishment of less restrictive alternatives to guardianship, like power of attorney and a Supported Decision-Making Agreement, where individuals choose people they trust to help them understand the decisions they need to make and to communicate their decisions to others. Directive to the court to determine whether alternatives could meet the needs of the person rather than guardianship. (CSHB 39, Smithee, SB 1882, Zaffirini).
Establishment of Limits of Guardianship with Services and Supports to require the court to determine if formal and informal supports are in place or available that enable individuals to meet their needs for food, clothing, or shelter, care for their physical or mental health, manage financial affairs and/or make decisions so that guardianship may be averted or limited. (CSHB 39, Smithee).
Protection of the ability for individuals under guardianship to, if possible, make decisions about where they reside (CSHB 39, Smithee).

In 2017, CTD and GRSDM's efforts to change the term "ward" to "person under guardianship", SB 498 (Zaffirini), failed for a second session. Perhaps most disappointingly, though, SB 667 (Zaffirini), passed both houses and was sent to the Governor's desk, where he vetoed the bill. SB 667 would have established a guardianship compliance program at the Office of Court Administration, which would have indicated important information about cases of neglect or abuse of seniors and people with disabilities under guardianships. Abbott called it "unnecessary bureaucracy and unnecessary spending."

Since then, however, key legislative staff have indicated that the need for such a program is better understood among leadership, and we are therefore better positioned to establish a guardianship compliance program in 2019.

More About Guardianships

Traditional Guardianships

Guardianship was designed to protect a person who is deemed by a court to be unable to make decisions for him or herself. The person is placed under a Guardianship of the Person or the Estate, and a judge appoints some one else to be the guardian (who the ward may not know). A judge can also place a ward under full guardianship, which results in a forfeiture of all rights regarding personal and financial decisions.

In many cases, guardianships function as they were intended, where the guardian acts in the genuine best interests of his or her ward. However, abuse and neglect can happen, and when the ward has limited legal rights or means to help themselves, dangerous situations can emerge.

In so-called Guardian Industry cases, a guardian is appointed to many different people at once and may take financial advantage of their situation. Some guardians do the bare minimum to maintain the appearance of adequate care for their ward, while collecting fees to do more.

In other cases, a guardian isolates the ward from his or her life and social network. Take the now-famous story of Jenny Hatch, a 29-year-old woman with Down syndrome who legally fought her mother and stepfather’s request for guardianship over her. They insisted that a group home environment away from her friends and her job was best. Jenny disagreed entirely. After a long legal battle, Jenny convinced a judge that she was capable of making her own decisions with a little support, and he gave her friends temporary guardianship. This paved the way for other people with disabilities to gain more control over their own lives.

Learn more about the Jenny Hatch case or visit The Jenny Hatch Justice Project to see how she’s helping others.

Supported Decision Making

Jenny's case resulted in a Supported Decision-Making (SDM) agreement, an alternative to guardianship that has garnered considerable attention in Texas. Simply put, SDM enables people to receive assistance from one or more trusted friends, family members, professionals or advocates to make important decisions. It is distinct from traditional guardianship in that a person can receive support without giving up rights. Not unlike an ASL interpreter, the supporter is a go-between, rather than a substitute, for the person they serve.

Learn more about Supported Decision-Making for Texans with Disabilities in our guest blog post by The Arc of Texas' Megan Morgan.