Guardianship Alternatives for Adults, Minors & Estates
Guardianship deprives a person of the right to make decisions about their activities and their assets. The former are made by a guardian of the person. The latter are made by a guardian of the estate. Administering a guardianship of the estate can be costly, time-consuming, and burdensome.
Terry Garrett and Melanie Ibarra-Herrera help people avoid guardianship where possible. Often, we can get by with a little help from our friends. These friends may be the people providing supports and services found in Resources for People with Special Needs and Their Families or in Resources for Older Americans. These friends may be private documents and court orders which are less restrictive than guardianship.
ALTERNATIVES TO GUARDIANSHIP OF THE PERSON
Parents are the natural guardians of their minor children. If they are divorced, the parent with whom the child usually resides is called the managing conservator. Some decisions must be joint while others must be made with or with notice to the other parent, as specified in the divorce decree.
Parents can authorize a grandparent, an adult sibling or an aunt or uncle to stand in their place, using Form 2638 Authorization Agreement for Non Parent Relative. When parents are unavailable, these people or, with written permission, the school or an adult caring for the child can consent to dental, medical, psychological or surgical treatment. During divorce proceedings, the court can consent. Unless notified otherwise, the Texas Youth Commission can consent on behalf of a minor in its custody. In addition, grandparents who provide substantial after-school care may register their grandchildren in a neighborhood school. All these arrangements are temporary. Form 2638 is revocable at will.
People with mental illness or intellectual disabilities
You don’t have to do it all yourself. You can appoint someone your representative to deal with the IRS using Form 2848. http://www.irs.gov/pub/irs-pdf/f2848.pdf. You can appoint someone your representative to deal with Social Security using Form SSA-1696. http://www.ssa.gov/forms/ssa-1696.html. The Social Security Administration will also accept a form from your doctor. You can appoint someone your representative to deal with the VA. http://www.vba.va.gov/pubs/forms/VBA-21-22A-ARE.pdf.
Mentally ill people may benefit from court-ordered services and criminal prosecution diversion programs. Those accused of a misdemeanor may be represented by Travis County Mental Health Public Defenders ((512) 854-3030). The Austin office of the National Alliance for the Mentally Ill has guides in English and in Spanish on what to do when a person with a mental illness becomes involved with the criminal justice system. www.namiaustin.org.
Similar guides are available for people with an intellectual disability who become involved with the criminal justice system. Surrogate decision making committees can make medical and non-medical decisions for people with intellectual disabilities who reside in an intermediate care facility.
Medical Powers of Attorney and Related Documents
Adults with legal capacity can usually stay in charge of their health care and avoid guardianship of their person later in life by signing a Medical Power of Attorney. End-of-life decisions can be recorded in an Advance Directive (or “Living Will”), perhaps accompanied by a written Statement of Intent for End-of-Life Care. Combining these with a HIPAA Medical Information Release so that the agent under the Medical Power of Attorney will allow health care providers to communicate with people in addition to the agent under the Medical Power of Attorney.
People with dementia need an agent under a Medical Power of Attorney to make sure that they are not prescribed antipsychotic drugs. These “criminal restraints” kill. They are counterindicated by the FDA, forbidden by the Center for Medicare and Medicaid Services (CMS) but still given to one out of five nursing home residents with dementia. Almost 14% of people with dementia who reside at home are prescribed a cocktail of drugs for what are actually only transient symptoms.
Adding a Mental Health Directive can be important. During a given six month period, about one in three nursing home residents become temporarily disoriented, delusional or deranged due to a medication error. A Mental Health Directive can state that the regular physician and family members should be called before anything else is done. This helps the treating physician, who is seeing the patient for the first time, reach an accurate diagnosis. A Medical Health Directive can also state preferred modes of treatment and specify what should not be done.
If you do not have a Medical Power of Attorney, Texas law allows family members and others to make decisions for you, specifying an order of priority. Note that this is different from having them merely communicate your decisions. You may hope this is what they do but different people may remember differently. In addition, not all doctors and hospitals are aware of this law.
There are limits on what they can decide. Neither your spouse nor your children, neither your parents nor any other relative, neither clergy nor someone you identified before becoming legally incapacitated can commit you to a psychiatric hospital, consent to electroconvulsive treatment (“shock therapy”), appoint someone else to decide, make emergency medical decisions (your consent to emergency treatment is presumed), or decide whether to extend or withdraw life support.
Choose for yourself.
Document your choices.
Share your documents. Give copies to all your doctors and everyone you name. Carry them uploaded to a USB in a labelled wallet card.
When you can’t speak, have them ready to speak for you. Half of people 65 and older arrive at the hospital unable to direct their care.
Without an Advance Directive (or “Living Will”) or some form of written, available Statement of Intent for End-of-Life Care, no one knows what to do when you are nearing the end of your journey and cannot communicate. You deserve to make choices. Make sure others know what those are.
Complete a Dementia Worksheet. Half of us experience some form of dementia after age 85. You may want different things at different stages. You will be able to communicate more early on.
We all hope that our Powers of Attorney will work and that our agents will communicate our choices. We also need a fallback in case they do not or cannot, in case we someday need a guardian. A Declaration of Guardian in Case of Need names who you want and who you do not want. Exclude facilities and paid non-family caregivers: they have a built-in conflict of interest.
Although death itself may not be painful, the conditions leading to it can be, your pain can be addressed. Doctors in Texas are allowed to prescribe you morphine for pain without fear of sanction for your possibly becoming addicted.
You can forego a painful “death by ICU” by asking your doctor to sign an Out-of-Hospital Do Not Resuscitate Order (or “EMT-DNR”), prominently posting the order, perhaps on your refrigerator, and wearing a special bracelet you can order from that Texas government website. You can also ask your doctor for a Do Not Hospitalize Order and for an In Hospital Do Not Resuscitate Order.
Have clear, comprehensive and repeated discussions with your family. Let them know whether, like most doctors, you prefer to die at home. Remind them that respecting your wishes is an act of love.
Help from Adult Protective Services and Others
An adult may need emergency medical services or be in physical danger. Elder and disabled adults may be unable to provide for their own food and shelter and manage their medicine. They may not be able to protect their emotional or physical well-being. If this is happening to your or someone you know, call Adult Protective Services (1-800-252-5400). Adult Protective Services can investigate and offer services. The adult can refuse them. In extreme situations, Adult Protective Services can seek an Emergency Protective Order. This is initially good for 72 hours. It can be extended for up to 30 days.
Report elder abuse to the Texas Attorney General by calling numbers listed on its website for different types of abuse. www.texasattorneygeneral.gov/seniors/elder-abuse.
If someone in a nursing home or other facility is being abused, report this to the Texas Department of Health and Human Services (1-800-458-9858) and call the Long-Term Care Ombudsman (1-800-242-2412).
A legal hotline for older Texans is operated by the Texas Legal Services Center (1-800-622-2520). www.tlsc.org.
Driving Licenses, Classes and Agreements
Texas 79 and older must renew their driver’s license in person. Texans 85 and older must renew every two years. There are special, extended classes to help people with certain mental limitations learn to drive. There are also classes for older drivers at St. David’s in Austin and elsewhere.
No one wants to give up the keys — or to have a serious accident. If an older adult is beginning to have trouble driving, a “Family Driving Agreement” can serve as an advance directive for driving. www.keepingussafe.org. If all else fails, anyone can file a “Re-Test Request” with the Department of Public Safety ((512) 424-2000).
Fortunately, today we have on demand chauffeurs in Lyft and Uber as well as taxi services. Giving up the keys no longer needs to mean giving up your independence.
Supported Decision-Making Agreements
Supported decision-making arrangements between a “supporter” and an adult who is having difficulty with Activities of Daily Living or other matters, such as handling finances, is a new approach in Texas. It seems to have proven helpful in Europe and is gaining in popularity throughout the United States. A sample agreement appears at www.tcdd.texas.gov/wp-content/uploads/2015/10/Supported-Decision-Making-Agrement-Oct.15.pdf.. Your supporter could gather information and help you decide about obtaining food and clothing; about where to reside and with whom. Your supporter could gather information and help you decide about supports and services; about medical care; about financial management and workplace choices. In February UT Law School offers a Supportive Decision Making clinic.
Note that supported decision-making can also be dangerous: there is no court oversight. You might start with the form and build in checks and balances appropriate to your individual situation. You can change them as the situation changes.
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ALTERNATIVES TO GUARDIANSHIP OF THE ESTATE, OR “CONSERVATORSHIP”
Control of the purse strings is often control of the person. When a guardian of the estate is appointed, an inventory and annual accountings must be submitted to the court, complete with invoices and receipts, and signed off on by an attorney. Almost every act of the guardian must first be approved by the court.
Representative Payee or Veteran’s Benefits Fiduciary
Becoming a Representative Payee for a disabled person receiving Social Security benefits (www.ssa.gov/payee) does not require a guardianship. A disabled person can appoint a representative payee. https://www.ssa.gov/forms/ssa-1696.html. A physician can complete a form stating that the Social Security beneficiary cannot manage her affairs. A separate bank account should be opened to receive benefits. https://www.ssa.gov/forms/ssa-1696.html. Only the representative payee has access to the money. Creditors cannot attach it.
A similar arrangement can name a Veteran’s Benefits Fiduciary for someone receiving veteran’s pension benefits www.vba.va.gov/bln/21/Fiduciary/index.htm.
A guardianship is not required to create a Texas ABLE Account for someone disabled before 26, to act as custodian of a Uniform Transfers to Minors Act account, to create a Special Needs Trust or a court-ordered Management Trust.
No court action is required to become a convenience signer on a bank account.
Money Deposited in the Court Registry
No guardianship is required to deposit up to $100,000 in an interest-bearing account with the court registry, whether for a minor or for someone who is legally incapacitated. Up to $250,000 can be deposited if the person is intellectually disabled and resides in a state residential care facility.
For a minor, the money might come from an inheritance or from the sale of the child’s interest in real property. Parents must use their own money to support the child. They can apply to the court for permission to withdraw funds from the court registry for special expenses such as summer camp, a clarinet or a car.
For an incapacitated person, up to $100,000 in real property can also be sold without a guardianship. However, selling or mortgaging real property or obtaining money from the court registry do require prior court approval.
Durable Power Attorney
This is probably the most commonly used alternative to guardianship of the estate or “conservatorship.”
You do not need to sign a “blank check” to avoid guardianship. All too often that is what a Durable Power of Attorney is. Think carefully before you sign. Ask what each power means. Think about what additional powers you would like your agent to have, how you would like to limit his actions, and to whom he should report.
Maybe you do not care who pays the gas bill, submits the tax return or insurance claim forms. Consider a Limited Power of Attorney for this, perhaps with a bank account with a convenience signer.
Maybe the Durable Power of Attorney should be a “springing” power, taking effect only when your doctor certifies that you are medically incompetent to handle your finances. (You may still be medically competent — and have legal capacity — to do other things.) If you are getting on in age, it may be better to have it effective now, while you can watch what your agent does and decide whether you may be better off with someone else.
Note that there is no “general” Durable Power of Attorney in Texas: you must modify the form to make it general. You must modify the form to make it “universal” to allow your agent to do tax planning. You must specifically add the power for your agent to make gifts to your church, your grandchildren — or herself.
Think about your specific situation, what you want someone to be able to do when and who can really be counted on to be able to do it properly.
Consult a competent elder law attorney and get a Durable Power of Attorney which works for you. Note that the IRS, the VA, the Social Security Administration and many brokerage houses have their own forms allowing someone to act as your agent or representative.
A Durable Power of Attorney is a contract between you and your agent. Someone else may require a certificate or a letter from a lawyer stating that it is still in effect before doing so. This could delay any action for up to 10 business days.
Consider your Durable Power of Attorney in the context of your overall retirement planning. It is only one piece of the puzzle.
Put Your Spouse in Charge
Texas is a community property state. Some property is separate. Some property is community property which is jointly managed. Some property is community property managed by one spouse or the other. If management and administration of community property becomes too much for one spouse, the other can apply to the court to be appointed community administrator: no guardianship is needed.
Some spouses instead use a Revocable Living Trust allowing both spouses to act together or, if one spouse becomes too fatigued from illness and medical treatments, allowing the other to act alone. This can cover separate as well as community property. It can specify what happens when neither spouse can act and what happens when both spouses are gone.
Keep the Business Running
Business owners can buy disability insurance payable to an account with a convenience signer and provide for a receivership during disability or legal incapacity to contract. Build this into your operating agreement and business practices from the beginning: 40% of disability arises before age 65.
Trusts have been used in English-speaking countries for over 1,000 years. Revocable Living Trusts can be helpful. They can also be a door to poor Medicaid planning or even scams.
In Texas, a Revocable Living Trust can be used to allow one spouse to manage finances if the other becomes unable, to hold out-of-state property (avoiding a probate in that state), and to provide how care will be arranged and assets managed during life as well as how they will be distributed after death.
With longer lives, there are more second marriages. In many second marriages one or both spouses have children from a previous marriage. Some couples use a Qualified Terminal Interest In Property (QTIP) trust to provide for the surviving spouse during life while assuring that property passes to the predeceased spouse’s children. Others use a combination of a Marital Trust and a Family Trust. This is sometimes called an A/B trust or a Credit Shelter Trust and a Bypass Trust.
All Texas Wills should provide a contingency trust, stating that a distribution to a minor, a disabled beneficiary, someone in bankruptcy or unable to manage money shall be paid to a trust. For a surviving spouse, this is sometimes called a Spousal Protection Trust. It can keep the spouse eligible for nursing home Medicaid and be used to supplement it. For a disabled person, this is a form of Special Needs Trust, preserving Social Security and Medicaid benefits and supplementing them.
Families and family situations differ. and change. Talk to an elder law attorney about what would work best for your family.
Good planning and use of one or more of these alternatives can go a long way toward eliminating the need for a burdensome, restrictive, and expensive legal guardianship. It can keep you in charge.