Guardianship Reform

Guardianship icon. One simplified figure stands slightly behind another.

Our Position

In the 85th Legislature, we are advocated for:

  1. Changing the impersonal term “Ward” to “Person under guardianship” in guardianship-related policies and documentation.
  2. Establishing Duties of Guardians to improve protections for individuals committed to institutional settings. This proposal calls for guardians to visit an institutionalized person every month and provide timely responses to calls, emails, or letters about the person.
  3. Funding for the Office of Court Administration’s guardianship monitoring.

Our efforts to change the term "ward" to "person under guardianship", SB 498 (Zaffirini), failed for a second session.

Perhaps most disappointingly, 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. CTD worked hard to push this bill and saw it as a major step toward addressing guardianship abuse in Texas. Governor Abbott called it "unnecessary bureaucracy and unnecessary spending." Read more about Abbott's veto of the guardianship compliance program in the Texas Observer.

The Latest

Oct. 1, 2018: In the 2019 legislative session, state Sen. Judith Zaffirini (D-Laredo) plans to sponsor legislation to hire additional compliance specialists at the state level to help small counties oversee guardianships. Source: TheAARPBulletin | AARP Texas

Background

In 2013, CTD and a number of our partners noticed a growing problem. Older Texans and people with intellectual and developmental disabilities (I/DD) 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 Administrators reports that 51% of people under guardianship have I/DD (source: Texas Guardianship Cases report).

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.

Guardianship and SDM in Texas

This legislative session, Texas became the first state in the country to formally implement SDM (SB 1881, Zaffirini), in addition to passing a number of guardianship reform measures, including:

  1. The creation of a Bill of Rights that lists the rights that a person under guardianship or proposed person under guardianship gets to keep. Rights for a person under guardianship include the right to live, work and play in the most integrated setting, visit with people of their choice, and appear before the court to express their preferences or concerns. Rights for a proposed person under guardianship include the right to petition the court and due process. (SB 1882, Zaffirini; HB 1438, S. Thompson)
  2. The establishment of less restrictive alternatives to guardianship, such as a power of attorney or representative payee, and direct the court to determine whether alternatives could meet the needs of the person rather than guardianship. (CSHB 39, Smithee)
  3. The 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)
  4. The requirement that individuals under guardianship should, if possible, be able to make decisions about where they reside. (CSHB 39, Smithee)

It may seem surprising that Texas is the first state in the country to make such great strides. On one hand, the self-reliance and self-determination that lie at the heart of SDM align perfectly with Texas' values. On the other, our state consistently rates low in the treatment of people with disabilities in general and I/DD in particular, independent living, and access to support. But the success of SDM and traditional guardianship reform in Texas is no accident, and we can use this example to learn to become more effective advocates.

Several things facilitated this success:

In 2009, State Senator Judith Zaffirini passed a bill to launch a SDM pilot program in San Angelo, Tx. 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.

In addition, the SDM cause was championed by a specific group: the Guardianship Reform and Supported Decision-Making (GRSDM) Workgroup. The GRSDM Workgroup organized at the close of the 2013 legislature 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:


Take Action

Join CTD's Guardianship Action Group to support the GRSDM Workgroup's remaining priorities in 2017.

Further Reading

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