Guardianship is a legal process by which the courts appoint a responsible person to make decisions for another person. In the larger counties of Texas, it takes place in the Statutory Probate Court, and in smaller counties it happens in the County Court assigned to handle probate matters.  The policy of the State of Texas relating to guardianships is to limit the guardianship to that which is necessary to promote and protect the well-being of the person. There are two types of Guardianship – Guardian of the Person and Guardian of the Estate.  The Guardian of the Person is responsible for the overall physical and mental care and wellbeing of the individual in need, and the Guardian of the Estate is responsible for managing the person’s money and assets.  Guardianship in Texas is a process that involves adults in need, much more often than children.  Typically, the only time a Guardianship procedure is necessary for a child is when that child has money that needs to be managed, such as money acquired though an inheritance, life insurance proceeds, lawsuit winnings, etc.  If someone needs legal authority to take physical and mental care of a child, he or she will usually go through the Family Court system and obtain a “Conservatorship.” Guardianship removes the civil rights and privileges of a person by assigning control of a person’s life to someone else.  Although the state directs a court to “design a guardianship to encourage the development or maintenance of maximum self-reliance and independence of the incapacitated person,” it is not uncommon for courts to create full guardianships, which deprive persons with intellectual and physical incapacities or disabilities of the right to make fundamental decisions about their lives.  It is a very expensive, burdensome, overwhelming and humiliating process.  Because of this, we at HAIMAN HOGUE, PLLC, spend a great deal of our time educating our clients and the general public about how to seek alternatives to guardianship.  This Blog will give you an introduction to a few of the key alternatives.

1. Estate Planning documents

These are what I refer to as the Living Documents – the documents that everyone needs to be ready for the “unexpected.”  We all hope that unexpected illnesses and injuries will never happen, but if and when they do, will you have the necessary documents in place that state who has legal authority to act on your behalf?  These include a Power of Attorney, Medical Power of Attorney, HIPAA Authorization, Directive to Physicians and Declaration of Guardian in case of Future Incapacitation.  There are two major concerns with these documents, though.  First, they must be executed prior to the time you need them.  They must to be done while you are well enough to have the mental capacity to fully understand what it is you’re signing.  I often speak to people who say that their loved one has been diagnosed with dementia or Alzheimer’s, so they now need to get a power of attorney to take care of the person. Unfortunately, I typically can’t help them because the disease has progressed to a point where the loved one no longer has the mental capacity to understand what he or she is signing.  When this happens, it’s too late to execute any estate planning documents. The second concern is that the permissions granted in these forms can be taken away.  I’ve seen this in Alzheimer’s patients who get to the paranoid state and their minds are telling them that the persons they trust can no longer be trusted.  For example: Daughter has used mom’s estate planning documents to care for her for years, but all of a sudden, mom’s mind is wrongfully telling her that this daughter is out to get her, is stealing her money and wants her dead.  Mom at this point refuses to allow daughter to care for her, therefore making her Living Documents useless.  At this point daughter might not have a choice but to seek guardianship, so that she can continue to care for mom. Because of the second concern, we recommend you consider adding a well-drafted trust to your estate plan in addition to these very important Living Documents.

2. Joint Bank Accounts

There comes a time when minors, senior citizens, or disabled persons might need someone to manage their money. Joint bank accounts function much like standard checking accounts but belong to multiple people, each of whom can contribute to and use the money in an account. Such accounts are ideal for adults assisting their aging parents. Establishing joint checking accounts allows a family member or trusted friend/companion to help manage money, both coming in and going out. If you’re planning on sharing an account with an aging parent, it is extremely important to keep the channels of communication open. That may mean having difficult discussions about spending and saving habits. As uncomfortable as it may be, initiating these types of conversations can prevent even bigger headaches later.

3. Representative Payee or Veteran’s Benefits Fiduciary

A guardianship is not required for someone to become a Representative Payee for a disabled person receiving Social Security benefits. Social Security’s Representative Payment Program provides financial management for the Social Security and SSI payments of beneficiaries who are incapable of managing their own Social Security or SSI payments. The disabled person can appoint a representative payee, and a physician can complete a form stating that the Social Security beneficiary cannot manage his or her affairs, and a separate bank account can be opened to receive benefits. Only the representative payee has access to the money. A similar arrangement can name a Veteran’s Benefits Fiduciary for someone receiving veteran’s pension benefits. This Veteran’s Benefits Fiduciary can handle Pension and Aid and Attendance benefits. Also, a guardianship is not required: (1) to create a Texas ABLE Account for someone who became disabled before 26 years of age; (2) to create a Special Needs Trust; (3) to act as custodian of a Uniform Transfers to Minors Act account, or (4) to create a court-ordered Guardian Management Trust.

4. Help from Adult Protective Services or Others

Adult Protective Services’ mission is to educate the public about prevention of elder abuse and to protect older adults (age 65 or older) and persons with disabilities from abuse, neglect, and exploitation by investigating and providing or arranging for services, and if needed, to stop or prevent further harm. Victims of abuse, neglect, or exploitation may get short-term help with shelter, home repairs, food, transportation, managing money, medical care, home healthcare services, and mental health services.  Adult Protective Services (APS) is part of a unique collaboration called the Texas Elder Abuse and Mistreatment (TEAM) Institute. Established in 1997, the TEAM Institute became the first APS, medical school and public hospital collaboration in the U.S. The mission of the TEAM Institute is to improve and protect the lives of mistreated elders through clinical care and forensic assessment, education, research and justice. APS enters into contracts to provide services to clients to help them prevent or overcome abuse, neglect or exploitation.   These services may also be provided through collaboration with other state agencies through interagency agreements or memoranda of understanding.  Through these contracts, DFPS (Dept. of Family Protective Services) establishes the qualifications, service deliverables, reporting requirements, documentation requirements, payment methodology and performance measures for each service. APS Contracted Services include Nursing Facility Services, Mental Health and Medical Assessment Services, Personal Assistance Care Services, Counseling Services, Heavy Cleaning Services, and Extermination Services Residential.

5. Supported Decision-Making Agreements

Supported decision-making arrangements are agreed upon between a “supporter” and an adult who is having difficulty with the ADLs (Activities of Daily Living).  This is a new approach in Texas that seems to have proven helpful in Europe and is gaining in popularity here. The “supporter” would gather information and help decide about obtaining food and clothing, about where to reside and with whom, about supports and services, medical care, financial management, and workplace choices.  But one concern you must keep in mind is that supported decision-making arrangements can also be dangerous because there is no court oversight.

6. Money Management

The purpose of these money management programs is to promote and prolong independent living for individuals who are at risk of losing their independence due to an inability to manage a checking account, and to prevent financial abuse, neglect and exploitation of those individuals. These programs are intended for those who have no other source of assistance. This is accomplished through the use of volunteers who serve as Bill Payers and Representative Payees through the following agencies: Social Security Administration, Veterans Administration, Railroad Retirement and the Office of Personnel Management. Certain safeguards are built into most volunteer money management programs in an effort to protect clients.  A volunteer money manager must sign a conflict of interest statement and does not make any decisions about or give advice regarding property or investments.

7. Management of Community Property

If an individual is judicially declared incapacitated, the spouse may have the full authority to manage, control, and dispose of the entire community estate without the necessity of a guardianship.  As a protective measure, the court must find that the spouse is not disqualified. The standards for disqualification are the same as those for guardians. The qualification of a guardian of the estate does not take away control from the competent spouse over the community property.

8. Local Area Agency on Aging

Often, family members can find services through the local area agency on aging.  There are 28 throughout Texas who provide services for people 60 and older, their families, and other caregivers.  They provide the information and assistance needed in order for the families to locate and access all types of community services, such as: Information, Referral and assistance; Benefits counseling and legal assistance; Care coordination; Caregiver support services; In-home support services; Legal awareness; Nutrition services and Ombudsman Program.  Services are targeted to those with greatest economic and social need. Particular attention is paid to people with low incomes, older people who belong to minority groups, and older people residing in rural areas. In addition, family members and other caregivers may receive information and services on behalf of the older person for whom they are providing care.

9. For those qualified for Medicaid

It is important to take the time to research all the benefits and programs that are available for those qualified for Medicaid.  This can include accessing community-based Medicaid waiver programs for which the person is eligible, such as: Home and Community-based Services; Texas Home Living; Community First Choice; Community Living Assistance and Support Services; Deaf-Blind Multiple Disabilities; and Medically Dependent Children Program.  It can also include accessing Medicaid entitlement programs, such as: Primary Home Care; Community Attendant Services; Day Activity and Health Services.  Also, it’s worth the time to find out if the person is eligible for Medicaid Hospice.

It’s never too early to put in place some of these mechanisms to avoid guardianship. Proper planning and use of one or more of these alternatives can really help eliminate the need for a burdensome, restrictive, humiliating and very expensive legal guardianship.  Why would you want to avoid guardianship?  For one, guardianship is the most restrictive action taken to protect a vulnerable person, whereby that person can lose many or most of his or her basic rights.  It can lead to family members no longer being involved in the decision-making process if they are not appointed guardians.  And worst of all, it gets attorneys, the courts, and the government right in the middle of your lives.  Whereas, an alternative encourages people to be independent, allows them to keep some or all of their rights, and helps them retain a sense of dignity and purpose. Lastly, choosing an alternative may delay or completely prevent the need for a guardian.

If you found this helpful and want additional information or need to speak with someone about your specific situation, please contact the Estate Planning and Elder Law professionals at HAIMAN HOGUE, PLLC, where we Faithfully Serve God & Our Clients in everything we do. Tel: (469)89-ELDER {469•893•5337} • Email: info@HaimanHogue.com or you can request an appointment through our website www.HaimanHogue.com.

 

Information used for this Blog was found in the following references:

http://www.tcdd.texas.gov/resources/guardianship-alternatives/some-alternatives-to-guardianship/

https://elderlawaustin.com/alternatives-to-guardianship

http://www.texasbarcle.com/Materials/Events/2143/34859_01.pdf

https://www.ssa.gov/payee/

http://texasguardianship.org/guardianship-information/guardianship-alternatives/

https://hhs.texas.gov/doing-business-hhs/provider-portals/long-term-care-providers/area-agencies-aging-aaa

https://hhs.texas.gov/sites/default/files/documents/laws-regulations/legal-information/guardianship/pub395-guardianship.pdf

https://www.nerdwallet.com/blog/banking/joint-checking-account/

https://www.dfps.state.tx.us/Adult_Protection/