Alternatives to Guardianship

Guardianship is a legal tool, which allows a person to make decisions for another person. It 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 disabilities of the right to make fundamental decisions about their lives.

The vast majority of people with disabilities, including those with intellectual and developmental disabilities are able to make important decisions with or without the provision of supports and services and should be given the opportunity to avoid or limit guardianship through alternatives, including supported decision-making.

Alternatives to Guardianship

• A supported decision-making agreement that involves friends and family instead of specific court-appointed substitute decision-makers under Section 1357, Estates Code.
• Appointment of a representative payee under Section 807(a), Social Security Act.
• A durable power of attorney under Section 751.002, Estates Code.
• A special needs trust that allows an individual with disabilities to have funds available for certain expenses while protecting eligibility for public benefits and access to care and services.
• A management trust under Chapter 867, Subpart N, Estates Code.
• Alternate forms of decision-making based on person centered planning which is a process directed by the individual with support needs, intended to identify the strengths, capacities, preferences, needs and desired outcomes of the individual under Section 1002.0015(9), Estates Code.
• Formal and informal services and supports that enable individuals to meet needs for food, clothing, or shelter, care for physical or mental health, manage financial affairs or to make personal decisions regarding residence, voting, operating a motor vehicle and marriage under Section 1002.031, Estates Code.
• A declaration for mental health treatment under Chapter 137, Civil Practices and Remedies Code.
• Asset building accounts for individuals with disabilities under the Achieving a Better Life Experience Act of 2014 (ABLE Act).
• An advanced directive under Chapter 166, Health and Safety Code
• A joint bank account