Texas Judicial Council – Elders Committee
January 30, 2014
Chair Spencer and Members of the Elders Committee,
My name is Belinda Carlton and I am a Public Policy Specialist with the Texas Council for Developmental Disabilities (TCDD). TCDD is established by federal law and is governed by a 27 member board, appointed by the Governor, 60% of whom are individuals with developmental disabilities or family members of individuals with disabilities. The Council’s purpose in law is to encourage policy change so that people with disabilities have opportunities to be fully included in their communities and exercise control over their own lives.
TCDD’s position concerning guardianship matters is to support increased opportunities for, and protections of the civil rights and well being of people to make important decisions without the need for a full or limited guardianship. A person should not be presumed to need a guardian simply due to advanced age or the presence of a physical or mental disability. 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.
TCDD was delighted to be included in the Texas Working Interdisciplinary Network of Guardianship Stakeholders (WINGS) workgroup. Our inclusion recognized that guardianship policies significantly impact Texans with disabilities, in addition to elders. Likewise, it is essential that proposed judicial policies and initiatives relating to guardianship are developed and considered with people with disabilities in mind.
Recommendations from the WINGS workgroup about promoting alternatives, providing a uniform assessment of capacity focused on the person’s abilities rather than on limitations, and providing training in person –centered planning all support the purpose of guardianship – to develop and maintain self-reliance and independence.
In addition to the WINGS initiative, TCDD works with a cross-section of stakeholders on policy recommendations for guardianship and supported decision-making. This ad hoc group has held informal meetings each month since June. Participants currently include representatives from TCDD, Disability Rights Texas, The Arc of Texas, Texas Advocates, Autistic Self-Advocate Network, ADAPT of Texas, Tom Suehs, former commissioner of Texas Health and Human Services Commission, Senior Source, the Coalition of Texans with Disabilities, and Guardianship Reform Advocates for the Disabled and Elderly. The Texas Silver Haired Legislature has recently become aware of our efforts and is interested in our proposal for supported decision-making. So far, we have developed policy recommendations for:
- (1) Changing the term ward to person under guardianship;
- (2) Additional alternatives to guardianship;
- (3) A bill of rights for persons under guardianship;
- (4) Supported decision making agreements;
- (5) Duties of a guardian;
- (6) Considering the person’s access to formal and informal supports before guardianship
determinations are made; and
- (7) Letting a person under guardianship decide, if they are able, where they live.
It is my understanding you received these seven policy proposals prior to the meeting today. Some of them are quite lengthy so we would like to briefly outline their intent. I will highlight two of these proposals and my colleague will speak to the remainder.
- Person Under Guardianship – The proposal is to change the term “ward” to “person under guardianship”, or “person”. We would like to say this idea originated with us, however, the National Guardianship Association Standards for Guardianship, published in 2000, 4th ed. 2014, uses the term “person under guardianship” throughout and speaks to the fact that some states have replaced “ward” in statute with person under guardianship”. “Ward” is an antiquated term.
- Alternatives to Guardianship – The Texas Estate Code includes the charge to maintain the maximum level of self-reliance and independence of the “incapacitated person” but judges often indicate they have no direction about how to achieve this and routinely decide on full guardianship. Alternatives already exist in statute but they are located throughout the code and are not referenced in one place. Listing the alternatives in code after the guardianship purpose statement with a directive to the court to determine whether alternatives could meet the needs of the person could avoid guardianship and the loss of the individual’s civil rights.
In closing, we know, we know there are good guardians and bad guardians. But even in the best guardianships the person loses the right to make choices, achieve maximum independence and be fully included in the community. People with disabilities and the elderly have areas of varying capacity, in different areas of their lives, and at different times and we are interested, as is the Elders Committee in protecting and improving the quality of life for the elderly and Texans with disabilities.
Thank you all for your service to Texas. Please let us know what we can do from here forward to assist you in your mission.
Belinda Carlton, CPM
TCDD Public Policy Specialist
Desk Phone: 512 437-5414