Via Email: Julia.firstname.lastname@example.org
December 12, 2016
Julia Marsh-Klepac, Quality Assurance Manager
Department of Aging and Disability Services
701 West 51st Street
Austin, TX 78751
Re: Public Comments on Proposed Changes to Decision-Making Operational Policy
The Texas Council for Developmental Disabilities and Disability Rights Texas appreciate the opportunity to provide joint comments on the proposed changes to statewide operational policy number 019.1, Decision-Making (currently policy number 019, Guardianship) relating to the Department of Aging and Disability Services (DADS) Guardianship Services Program. While our respective agencies welcome the addition of alternatives to guardianship within the Guardianship Services Program, our recommendations seek to strengthen access to supported-decision making agreements while clarifying that, consistent with recent legislative policy direction, guardianship should be an option of last resort. Our comments are intended to assist SSLCs in reducing reliance on guardianship and to emphasize alternatives to guardianship, as per the recent legislative direction codified within the Texas Estates Code, Chapter 1357. Supported Decision-Making Agreement Act. The recommendations outlined below seek to advance the values DADS holds related to dignity and choice in providing supports and services that enable individuals to retain or regain their right to make decisions and live without the need for a full or limited guardianship.
We respectfully submit the following comments:
Draft Policy # 019.1
We suggest the following modifications to Definitions: Although statute is referenced in several definitions, key terms such as “Capacity,” “Legally adequate consent” and “Legally Authorized Representative (LAR)” have no reference to the law. We suggest using definitions lifted from the relevant statute, Texas Estates Code Title 3, Sec. 22.016. We have concerns that the definitions of “Capacity” and “Legally adequate consent” in particular go beyond the scope of the law and do not reflect the rights of an individual regarding the ability to provide consent until a court has ruled that a person is incapacitated.
Regarding Section I. Determination of Support Needs, the current language does not clearly identify that the individual at the center of the determination is involved at each step of the process. In keeping with the person-centered provisions of the Supported Decision-Making Act, Texas Estates Code, Chapter 1357, efforts to determine support needs should not impede the self-determination of the person [Texas Estates Code § 1357.002(3)]. The wishes of the person are not referenced in this process until section D., after the interdisciplinary team (IDT) has identified and documented supports needed by the individual. This process should be clarified by reiterating the individual’s right to self-determination at the beginning of Section I. Determination of Support Needs.
Regarding Section II. Coordination of Decision-Making Supports and Services and Guardianship Services, we have concerns generally that “decision-making supports and services” and “guardianship services” are grouped together without clear distinctions. We recommend separating these areas into two sections, with “decision-making supports and services” preceding “guardianship services” to emphasize that guardianship is an option of last resort. The content from Section III. Alternatives to Guardianship, should also be incorporated into the earlier section on “decision-making supports and services.”
Also regarding Section II. Coordination of Decision-Making Supports and Services and Guardianship Services, we have multiple concerns with the listing of individuals determined to lack capacity as described in C. and D. It is not clear within the policy how these factors will be assessed for individuals, nor what the specific intent or purpose of this listing would be. In order to uphold individuals’ rights and safeguard against subjectively identifying individuals merely suspected of lacking capacity, we recommend eliminating areas C. and D.
Regarding Section III. Alternatives to Guardianship, we recommend including definitions and examples for each of the supports listed. As written, only two of the eight supports listed include definitions within the policy document.
Regarding Section IV. Guardianship, we recommend broadly that the policy maximize independence and self-reliance by clearly delineating the circumstances under which a guardianship, particularly without a family member, would be necessary as per Texas Estates Code § 22.016 and § 1101.101. We recommend that DADS closely follow guidance provided by the U.S. Department of Justice and recent legislative direction concerning court-initiated guardians and guardianships generally. Rather than simply outlining the steps in order to proceed with the guardianship process, and particularly a court-initiated guardianship, we recommend additional language on less restrictive alternatives to guardianship (Texas Estates Code § 1002.0015 and § 1357.051) as well as clearly spelled out limitations to guardianship (including Texas Estates Code § 1001.001 and §1101.101).
We recommend changing the headings on the table included in Exhibit A. The heading “Things to Consider” is unclear and does not appear to relate to the content included within the row. We recommend including a definition of the term, as well as complete sentences that provide clear direction and explanations of each support and service.
Under “Supports/Services” the term “Supported Decision Making Agreement” should be changed to “Supported Decision-Making Agreement” as per Texas Estates Code, Chapter 1357.
We recommend the addition of a letter similarly titled “Information on Becoming a Supporter” Letter, which would be addressed to a family member or other individual who may serve as a supporter for a person as part of a supported decision-making agreement. This informational letter should be sent prior to the letter as written in Exhibit C, which seeks to identify a potential guardian for a person said to have already attempted alternatives to guardianship.
Regarding Exhibit C as written, “Information on Becoming a Guardian,” we recommend additional information on steps the SSLC may take (namely, that the SSLC may contact the court to proceed with obtaining a court-initiated guardianship) if a family member or friend is not able to serve as a person’s guardian. We further recommend that this letter be sent via certified mail, return receipt requested, in order to appropriately ensure receipt and documentation of the letter for purposes of the court.
We recommend that Exhibit D “Request Letter for a Court Initiated Guardianship” include significantly more documentation detailing attempts to contact a potential supporter, a potential guardian and all previous attempts made at less restrictive alternatives to guardianship. We are concerned that the letter as written contains only information which may be pulled from an individual’s intake information and may be abused. In order for the court to make an informed and ethical judgment concerning an individual’s capacity and need for a court-initiated guardianship, the SSLC should provide as much clear documentation as possible; including, but not limited to, times, dates, and methods of communication in contacting family members or friends, as well as copies of any and all correspondence related to attempts at less restrictive measures.
Regarding Exhibit E “Guardianship Status Update Letter,” we recommend including information for the contact information for the court, which may be helpful to the guardian receiving the notice. As the court will already be receiving a copy of this letter, including the court’s contact information should not be an additional burden for SSLC staff.
Additionally, we recommend including language that would clarify potential next legal steps that the SSLC may pursue in coordination with the court, if documentation of guardianship renewal is not received. Any additional information on the role of the SSLC in contacting the court should include references to relevant statutes (including 40 TAC § 2.253 and § 4.105; Texas Estates Code, Title 3; and Texas Estates Code § 1357).
Thank you for your service to Texans with disabilities and for the opportunity to provide input on this important policy revision. Please do not hesitate to contact us with any questions.
Meghan Regis, LMSW
Public Policy Specialist
Texas Council for Developmental Disabilities
Jeffrey S. Miller
Disability Rights Texas