Guardianship presentation
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This document discusses alternatives to guardianship of the person, estate, and minors under Texas law. It outlines less restrictive options like surrogacy decision making, medical powers of attorney, and representative payees that allow others to make decisions without a guardianship. These alternatives aim to respect individual rights and autonomy when possible.
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Guardianship presentation
- 1. LESS RESTRICTIVE ALTERNATIVES TO A GUARDIANSHIP: OF THE PERSON, OF THE ESTATE, AND OF MINORS Aquila Jordan. J.D., M.P.A. Guardianship Symposium, Texas Dispute Resolution System™
- 2. LESS RESTRICTIVE ALTERNATIVES DEFINED TEX. HEALTH & SAFETY CODE 591.005 (1)The available program or facility that is the least confining for a client’s condition; and (2) the service and treatment that is provided in the least intrusive manner reasonably and humanely appropriate to the person’s needs
- 3. ALTERNATIVE DISPUTE RESOLUTION Mediation A means that helps a potential guardian determine if less restrictive alternatives are available and can be utilized by the Proposed Ward Opportunity to explore less restrictive alternatives
- 4. ALTERNATIVES TO A GUARDIANSHIP OF THE PERSON Surrogate Decision-Making (“SDM”) TEX. HEALTH & SAFETY CODE 313.001-.007 Non-medical emergency Surrogate Decision-Making for Intellectually Disabled Persons (“IDD”) TEX. HEALTH & SAFETY CODE 597.041 Major medical and dental decisions More specialized than SDM
- 5. ALTERNATIVES TO A GUARDIANSHIP OF THE PERSON CON’T. Consent for Emergency Care TEX. HEALTH & SAFETY CODE 773.008 Provides for implied consent in life threatening emergencies End-Stage Planning: The Patient’s Intent, If Known TEX. HEALTH & SAFETY CODE 166.152(e)(1) Requires that patient’s wishes are to be followed if known.
- 6. ALTERNATIVES TO A GUARDIANSHIP OF THE PERSON: REQUIRES LEGAL DOCUMENTS Medical Power of Attorney TEX. HEALTH & SAFETY CODE 166.151 Puts someone the patient trusts, instead of doctors, to make decisions for them Designation of Guardian Before Need Arises TEX. PROB. CODE 679 An adult with capacity may decide, by written declaration, whom he/she wishes to serve or not serve as guardian of the person in the event of later incapacity
- 7. ALTERNATIVES TO A GUARDIANSHIP OF THE PERSON: REQUIRES LEGAL DOCUMENTS CON’T. Directive to Physicians and Family or Surrogates (“Living Will”) TEX. HEALTH & SAFETY CODE 166.033 Document that indicates the patient’s choice of health care and who will make decisions for them Out-of Hospital DNR (“EMT-DNR”) TEX. HEALTH & SAFETY CODE 166.081 Provides for resolution of life termination issues for ambulance personnel Need an official form to be honored
- 8. ALTERNATIVES TO A GUARDIANSHIP OF THE PERSON: MENTAL HEALTH Persons with Mental Retardation Act TEX. HEALTH & SAFETY CODE 591.002 State assistance in placement, training, treatment of mentally retarded. Pre-Need Declaration for Mental Health Treatment TEX. CIV. PRAC. & REM. CODE 137.007 A capacitated adult may indicate his or her preferences or instructions for mental health treatment. Requires a legal document
- 9. ALTERNATIVES TO A GUARDIANSHIP OF THE PERSON: MENTAL HEALTH CON’T. Application for Emergency Detention TEX. HEALTH & SAFETY CODE 573.011 Provides for a person’s emergency apprehension and detention at a mental health facility when evidencing mental illness Requires legal document Voluntary Treatment or Rehabilitation TEX. HEALTH & SAFETY CODE 462.021 Provides for a person’s voluntary admission to a treatment facility for chemical dependency
- 10. ALTERNATIVES TO A GUARDIANSHIP OF THE ESTATE Durable Power of Attorney Act (“DPOA”) TEX. PROB. CODE 481 Third party conducts business affairs of the principal *Requires a Legal Document Medicaid Qualification Trust [Miller Trust] 42 USC 1396 p (1)(d)(4)(B)(i) & (ii) Provides mechanism for a person/ward to qualify for Medicaid in a nursing home where their income exceeds program approval
- 11. ALTERNATIVES TO A GUARDIANSHIP OF THE ESTATE CON’T. Convenience Account TEX. PROB. CODE 438A Allows others to handle other banking business without giving the Convenience Signer any ownership interest. Representative Payee 42 USC 1383(a)(2) May be appointed by the Commissioner of Social Security to manage Social Security benefits Veterans Benefits Fiduciary 38 USC 5502(a)(1) Appointment of a person to manage a veteran’s pension benefits
- 12. ALTERNATIVES TO A GUARDIANSHIP OF THE ESTATE CON’T. Incapacitated Spouse TEX. PROB. CODE 883 Non-incapacitated spouse has the power to manage and dispose of entire community estate Receivership TEX. PROB. CODE 885 Provides relief for an estate in danger of injury, loss or waste
- 13. ALTERNATIVES TO A GUARDIANSHIP OF THE ESTATE CON’T. Payment of Claims Without Guardianship TEX. PROB. CODE 887 Provides for a $100,000 or less debt to be paid to the county clear due to an incapacitated person Sale of Ward’s Property Without Estate Guardianship TEX. PROB. CODE 890 Provides a mechanism for the guardian of a person to sell a ward’s property not exceeding $100,000.
- 14. ALTERNATIVES TO A GUARDIANSHIP OF THE ESTATE CON’T. Money Management Programs Prevent Identity Theft Social Service Agencies Geriatric Care Manager
- 15. ALTERNATIVES TO A GUARDIANSHIP: OF MINORS Rights and Duties of Parent TEX. FAM. CODE 151.003 Provides substantive listing of parental rights Sale of Property of a Minor by a Parent Without Guardianship TEX. PROB. CODE 889 Provides a mechanism for a parent to sell a minor’s interest in property not exceeding $100,000 Requires legal document Pre-Need Designation of Guardian by Parent TEX. PROB. CODE 677A, 702(c) Parent may designate, in a written document, those persons whom they desire to be guardian of the person and/or estate of their child or children
- 16. ALTERNATIVES TO A GUARDIANSHIP: OF MINORS CON’T. Emergency Treatment of Minors TEX. HEALTH & SAFETY CODE 773.008(3) Consent is implied for treatment of a minor in life- threatening injury or illness if the minor’s parents, conservator, or guardian is not present. Managing Conservatorships TEX. FAM. CODE Ch. 153 Used when there is not an issue regarding assets belonging to the minor children
- 17. ALTERNATIVES TO A GUARDIANSHIP: OF MINORS CON’T. Support For a Minor or Adult Disabled Child TEX. FAM. CODE 154.301 Provides for post majority support of a disabled child if the disability existed when a minor Uniform Transfers to Minors Act TEX. PROP. CODE 141.001 Ability of a donor to make transfers of assets to a minor
- 18. ALTERNATIVES TO A GUARDIANSHIP: OF MINORS CON’T. Authorization Agreement for Non-Parent Relative TEX. FAM. CODE CH. 34 Essentially authorizes the designee to do anything a guardian of the person could do. School Admission Procedures TEX. EDUC. CODE 25.001(d) School district may adopt guidelines to allow admission of non-resident children to attend school in that district without the need of a guardianship
- 19. ALTERNATIVES TO A GUARDIANSHIP: OF MINORS CON’T. Emancipation of Minor Ward TEX. FAM. CODE Ch. 31 Where a minor over 16, self-supporting or living apart from parents, may ask the court to legally remove the disabilities of minority.
Editor's Notes
- Various legal tools, pursuant to Texas Statutes, that may delay or prevent an appointment of a guardian for a person who is not capable of making decisions on his or her own behalfServes the best interest of the individual while placing minimal limits on ward’s rights and personal freedoms
- Surrogate Decision-MakingFor incapacitated individuals who are either in a hospital, nursing home or are receiving services through a “home and community support services agencyDecision-Maker Priority:1) patient’s spouse2) an adult child of the patient with the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker3) majority of the patient’s reasonably available adult children4) patient’s parents5) the individual that was clearly identified to act for the patient before he/she became incapacitated 6) patient’s nearest living relative7) member of the clergy What SDM does NOTdo:1) replace the authority of a guardian nor an agent under a medical power of attorney2) authorize treatment decisions for a minor unless the disabilities of minority have been judicially removed3) Authorize patient transfers under TEX. HEALTH & SAFETY CODE Ch 241.Limitations on Consent—Surrogate cannot consent to the following:1) voluntary inpatient mental health services;2) electro-convulsive treatment;3) the appointment of another surrogate decision-maker;4) emergency decisions; or5) end-of-life decisions (extending or withdrawing life support)Documenting Consent by the Physician:1) The attending physician is required to:a) describe the patient's incapacity in the patient's medical record;b) describe the proposed medical treatment;c) make a reasonably diligent effort to contact or cause to be contacted the persons eligible to serve as surrogate decision-makers; andd) document, in detail, the efforts to contact those persons listed in the patient's medical record.2) If a surrogate decision-maker consents to medical treatment on behalf of the patient, the attending physician should record the date and time of the consent and sign the patient's medical record. The surrogate decision-maker countersigns the medical record or signs an informed consent form.Surrogate Decision-Making for Intellectually Disabled PersonsThis option is a more specialized form of surrogate decision-making. Allows an individual SDM, an SDM Committee, a Surrogate Consent Committee and an Interdisciplinary Team the following:To interact to make major medical and dental decisions (including the administration of psychotropic medications and behavior interventions) To release of medical records for persons who reside in an intermediate care facility for the mentally retarded (ICF/MR) Also allows medical and non-medical decisions to be made by the committee.
- Consent for Emergency CareConsent is implied if the individual is:1. unable to communicate because of an injury, accident, illness, or is unconscious; and2. suffering from what appears to be life threatening injury or illness End-Stage PlanningPerson may express his/her wishes and desires to treatment decisions when death approachesIncluding religious or moral beliefs Texas Law requires that the wishes are to be followed, if known.
- Medical Power of AttorneyMost commonly used toolBut should be prepared and executed with close attention to the statutory scheme set out in the Health & Safety CodeProvides for an agent to make health care decisions for the principalHowever, only “kicks in” if the principal is unable to make his/her own decisionDesignation of Guardian Before Need ArisesMust be an adult and competent Must make a written statement saying who you want to be your guardian, and name an Alternate—in case the first person you choose cannot do it.Called a Designation of Guardian in Advance of NeedStatement must be signed in front of a Notary and:Witnessed by 2 people over age 14 who are not named as your guardian or alternate, orWholly in your handwrittingTo become effective, the named guardian must filed the Designation of Guardian in Advance of Need in court
- Directive to Physicians and Family or Surrogates Different than Medical Power of Attorney because the patient is making the decision with the physician rather than appointing someone to make the decision for themThis form requires:A disclosure statement,A place to indicate a choice between two treatment options, andA place for designation of an agentOut-Of Hospital DNRMust be competent at the time that the written document is prepared Tells the medical staff not to resuscitate the patient, even if the patient is not in the hospitalNeeds an official printed form from the Texas Department of Health in order to be honored
- Persons with Mental Retardation ActDoes not replace or impede parental rights or responsibilities Desirable to preserve and promote living at home if feasibleIf not, placement in a residential facility for persons with mental retardation is necessary.Person must be admitted to a facility that provides:1) habilitative training for the person’s condition2) fosters the personal development of the person, and3) enhances the person’s ability to cope with the environment Pre-Need Declaration for Mental HealthIndicates the preferences or instructions for mental health treatmentIncludes the right to refuse such treatment Declaration is effective on executionExpires on the third anniversary of its execution or when revoked, whichever is earlier
- Application for Emergency DetentionAn adult may file a written application for the emergency detention of another personApplication must state:1) applicant has reason to believe and does believe the person evidences mental illness2) the person evidences a substantial risk of serious harm to himself or others3) specific description of the risk of harm4) believes the risk of harm is imminent unless the person is immediately detained5) applicant’s beliefs are derived from specific recent behavior, overt acts, attempts, or threats6) detailed description of the specific behavior, acts, attempts, or threats, and7) detailed description of the applicant’s relationship to the person whose detention is sought.Voluntary Treatment or RehabilitationA facility may admit an adult who requests admission for emergency or nonemergency treatment or rehabilitation if:Facility is:Licenses by the commission to provide the necessary servicesLicensed by the Texas Department of Mental Health and Mental Retardation, orFacility operated by the Texas Department of Mental Health and Mental Retardation which as been designated by the commission to provide chemical dependency treatment; andAdmission is appropriate under the facility’s admission policies
- Durable Power of Attorney Act (“DPOA”)Legal document that lets the person appoint an adult who he/she trust to make decisions and do business for him/her.The patient is the “principal”Person you appoint to help is the “agent” or “attorney-in-fact”DPOA becomes effective upon execution or “spring” into effect upon the principal becoming disabledWhat they can do:Transfer propertyHandle banking transactionsMake investments with the principal’s moneyHandle the principal’s taxesWhat they cannot do:Tell the principal what to doDo any business for the principal that the principal did not agreed to in the DPOA To get a DPOATexas Probate Code Section 490 has a statutory general DPOA formMust be signed in front of a Notary PublicCan change DPOAOnly if the principal is competent and must:Notify the attorney-in-fact by certified mail, andNotify anyone the attorney-in-fact has done business with for the principal. Medicaid Qualification Trust [Miller Trust]A qualified income trust must be created with the applicant’s income in order to create eligibility for long-term nursing home care benefitsThis trust allows that person to meet the income limit to get Medicaid helpAn irrevocable trust
- Convenience AccountAllows a depositor to name a co-signer on his or her account without giving the co-signer ownership rights before or after the depositor’s deathAllows the co-signer to help them pay bills and handle other banking business Allows the depositor to name more than one Convenience Signer on the accountConvenience Signer cannot pledge the assets of the accountRepresentative PayeeMay be used when a person’s income is largely social security or other government benefitsWorks well for a person who has mental capacity, but physically cannot manage day to day financial affairsUsed to serve the interest of the individualVeterans Benefits Fiduciary Very similar to a Representative Payee, but deals with Veteran’s Pension Benefits Used for those who are incapable of managing their fundsResponsible for managing the beneficiary’s VA income and ensuring the beneficiary’s just debts are paid. To become a Veterans Benefits FiduciaryNeed to submit a request with the beneficiary's name and VA file numberYour name and contact information to the VA Regional Office nearest you.
- Incapacitated SpouseThe spouse of the incapacitated person has the power to manage, control and dispose of the entire community estate upon a finding by the Probate Court that:It is in the best interest of the ward for the capacitated spouse to manage the community property, andThe capacitated spouse would not be disqualified to be appointed as guardian of the estate under § 681ReceivershipIf the estate of a minor or other incapacitated person is in need of a guardianThe county judge of the county in which the minor or other incapacitated person resides or where the estate is located shall enter an order, with or without application, appointing a suitable person as receiver to take charge of the estate.
- Payment of Claims Without GuardianshipViewed as an Administrative Deposit MechanismUsed for a minor or other incapacitated person When the person is without a legal guardian, and the person is entitled to money in an amount that is $100,000 or less, the debtor may pay the money to the county clerk of the county in which the creditor resides during the period of incapacity. The clerk is to bring the matter to the judge’s attention and the funds are to be ordered invested in an interest-bearing accountSale of Ward’s Property Without Estate GuardianshipApplies only to a ward who has a guardian of the person but does not have a guardian of the estateWhen a ward has an interest in real or personal property in an estate and the net value of the interest does not exceed $100,000, the guardian may apply under oath to the court for an order to sell the ward’s interest in the property without being appointed guardian of the estate
- MoneyManagament ProgramsFor low-income elderly and adults with disabilities who are incapable of managing their checking accounts themselves and have no one else available or appropriate to assist them.Persons with a substantial estate may hire a bill paying service or other professional to assist themPrevent Identity TheftThis service helps assists those individuals to place a security freeze on their social security numbers, in a manner that would serve their best interest The credit union phone numbers are Equifax (800) 685-1111, Experian (888) 397-3742, and Trans Union (800) 916-8800. Social Service AgenciesMany social services agencies provide a variety of services specifically tailored to the needs of children, the disabled and elderlyGeriatric Care ManagerA Geriatric Care Manager (GCM) is a health and human services professional, such as a gerontologist, social worker, counselor, or nurse, with a specialized body of knowledge and experience on issues related to aging and elder care issues. GCMs are able to coordinate and manage eldercare services such as 1) conducting an assessment to identify problems, 2) conducting an assessment of eligibility for assistance and need for services, 3) coordinating medical services (physician contacts, home health services and other necessary medical services),4) screening, arranging and monitoring in-home help or other services,5) reviewing financial, legal, or medical issues and offering appropriate referrals to community resources 6) providing crisis intervention,7) ensuring everything is going well with an elder person and alerting families to problems, and 8) assisting with moving an older person to or from a retirement complex, care home, or nursing home.
- Rights and Duties of ParentA state agency may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child.Sale of Property of a Minor by a Parent Without GuardianshipUsed when a minor has an interest in real or personal property and the net value of the interest does not exceed $100,000A natural or adoptive parent, or managing conservator, of a minor may apply to the court to sell the minor’s interestNote: minor may not disaffirm a sale of property pursuant to the court orderThe parent shall apply under oath with proper venue with the correct application. Pre-Need Designation of Guardian by ParentCould be written in a will of the parents Requirements:Written wholly in the handwriting of the declarants; or Attested to in in the presence of the declarant by at least two credible witnesses 14 years of age or older who are not named as guardian or alternate guardian Must be filed with the court
- Emergency Treatment of MinorsUsed if the individual is a minor who is suffering from what reasonably appears to be a life-threatening injury or illness, and Whose parents, managing or possessory conservator, or guardian is not present.Managing ConservatorshipsThis assures that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the childProvides a safe, stable, and nonviolent environment for the child; and Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage
- Support for a Minor or Adult Disabled ChildCourt may order either or both parents to provide for support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that:The child is not cable of self-support because of a mental or physical disability Disability exists or the cause is to be known on or before the 18th birthday of the childUniform Transfers to Minors ActThe ability of a donor to make transfers of various types of assets to a minor by the donor’s appointment of a custodian has broad coverage and far-reaching implications. The custodian has authority to invest and expend the transferred assets – without court order – for the support, education, maintenance and benefit of the minor.
- Authorization Agreement for Non-Relative ParentChapter applies only to:An authorization agreement between a parent of a child and a person who is the child’s:Grandparents;Adult siblings; orAdult aunt or uncle; and Authorized to do the following acts:1) authorize medical, dental, psychological or surgical treatment and immunization of the child2) obtain and maintain health insurance coverage for the child and car insurance, if appropriate3) enroll the child in a day-care program or preschool, public or private primary or secondary school4) authorize child to participate in age-appropriate extracurricular, civic, social or recreational activities 5) authorize child to obtain a learner’s permit, driver’s license, or state-issued ID6) authorize employment of the child7) apply for and receive public benefits on behalf of the childSchool Admission ProceduresMust be established that the person’s presence is not for the primary purpose of participation in extracurricular activities. Board of Trustees may adopt reasonable guidelines for making a determination, if the applicant is admitted, to protect the best interest of students.
- Emancipation of Minor WardMinor may petition to have disabilities removed for limited or general purposesRequirements:1) resident of this state;2) 17 years of age, or At least 16 years of age AND living separate and apart from the minor’s parents, managing conservator, or guardian; and3) self-supporting and managing the minor’s own financial affairs. Minor may file suit in minor’s own nameNeed not be represented by next friend