Guardianship deprives a person of the right to control their own life, sometimes in almost every aspect. It is expensive. It is burdensome for the guardian and for the person under guardianship. Often we can get by with a little help from our friends, by using alternatives to guardianship.
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.
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There are two kinds of guardianship: guardianship of the person and guardianship of the estate, the person’s finances. If you do need to seek a guardianship, search for “Approved Guardianship Attorneys” on the website of the State Bar of Texas. But keep in mind: guardianship is often not necessary.
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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 the natural guardian. Some decisions must be joint or can be made by 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.
Schools may adopt procedures allowing non-resident children to attend. Grandparents who provide substantial after-school care may register their grandchildren in a neighborhood school.
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 also benefit from diversion programs and from representation 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. More information is available at www.namiTexas.org. Chronically mentally ill people may also receive court-ordered services.
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 later by signing (and having available) a Medical Power of Attorney, ideally attaching a letter reminding people of the person’s preferences, and an Advance Directive (or “Living Will”), preferably accompanied by a written Statement of Intent. These should be combined with a HIPAA Medical Information Release so that the agent under the Medical Power of Attorney can have the information necessary to make decisions.
Adding a Mental Health Directive can be important. A large number of elderly and intellectually disabled people who reside in facilities are prescribed depression, anxiety and anti-psychotic drugs even though they have no record of mental illness. Roughly 1/5th of people in nursing homes become temporarily disoriented, delusional or deranged due to medication errors. Roughly 1/5th of people suffering from dementia are given anti-psychotic drugs to make them tractable despite the FDA warning that those are counter-indicated for people with dementia. They kill.
If you do not have a Medical Power of Attorney, Texas law allows family members and others to make decisions for you, in order of priority and with 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, can consent to electro-convulsive treatment (“shock therapy”), can appoint someone else to decide, can make emergency medical decisions (your consent to emergency treatment is presumed), or can decide whether to extend or withdraw life support.
Choose for yourself. Document your choices. Share your documents. Without an Advance Directive (or “Living Will”) or some form of written, available Statement of Intent, no one knows what to do when you are nearing the end of your journey and cannot communicate. Complete a Dementia Worksheet. Half of us experience some form of dementia after age 85. You may want different things at different stages.
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.
Your biggest problem may be a family member who tries to override the Order. Have clear, comprehensive and repeated discussions with your family. Let them know whether, like most doctors, you prefer to die at home.
Help from Adult Protective Services and Others
If an adult needs emergency medical services or is in physical danger, perhaps no longer able to provide for their own food, shelter, medication management, emotional or physical well-being or perhaps living in a dangerous situation, anyone can call Adult Protective Services (1-800-252-5400). Adult Protective Services can seek an Emergency Protective Order, initially for 72 hours but extendable to 30 days.
See the website of the Texas Attorney General for telephone numbers to report specific types of elder abuse. www.texasattorneygeneral.gov/seniors/elder-abuse.
The Texas Legal Services Center has a legal hotline for older Texans (1-800-622-2520) and a website at www.tlsc.org.
If a change of situation does not resolve the problem, it may become necessary to seek a guardianship. You can state who you want and who you do not want to become your guardian in a Declaration of Guardian in Case of Need. Be sure to excljude any facility or paid non-family caregiver: they have a conflict of interest.
Driving Classes, Agreements and Tests
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. 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.
Anyone can file a “Re-Test Request” with the Department of Public Safety ((512) 424-2000). Texans 79 or older must renew their driver’s license in person. Those 85 and older must renew every two years.
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.
But 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, annual accountings must be submitted to the court and signed off on by an attorney.
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 and a separate bank account can be opened to receive benefits. https://www.ssa.gov/forms/ssa-1696.html. 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 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 or 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 or mortgage of the child’s interest in real property.
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. This protects the person more than an annual court review of a guardian’s accounts.
Durable Power Attorney
This is probably the most commonly used alternative to guardianship of the estate.
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.
Perhaps 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.)
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 have your bank and brokerage house pre-approve the language. 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. A third party is not required to accept it and can require a certificate or a letter from a lawyer stating that it is still in effect before doing so.
Putting 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 take over even without a Revocable Living Trust and a doctor’s certificate that the first spouse is mentally incompetent to manage their financial affairs.
That spouse may not be mentally incompetent. They may simply be too fatigued from illness and medical treatments. You can get a court order allowing the other spouse to be the Community Administrator.
Keeping 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.
Unlike a Durable Power of Attorney, a late twentieth century concept which is still full of kinks, 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. A living or “inter vivos” Special Needs Trust, established now, might supplement a disabled person’s Social Security and Medicaid or Medicare benefits. A testamentary Special Needs Trust, established by your Will, might provide for a spouse’ or child’s needs in much the same way. (This is sometimes called a Spousal Protection Trust.) Even without special needs, an Irrevocable Life Insurance Trust can pay for medical or other needs of one spouse, saving remaining life insurance benefits for the other. A Management Trust can be created even if no guardian is ever appointed. There are other forms of trusts which may fit your situation and become an important part of directing your retirement finances as well as planning for your heirs.
Good planning and use of one or more of these alternatives to guardianship can go a long way toward eliminating the need for a burdensome, restrictive, and expensive legal guardianship.