Strengthening Alternatives to Guardianship

While guardianships are intended to protect people from abuse or neglect, the judicial process removes individuals’ rights and their ability to make choices and control their own life by transferring power to a court-appointed guardian. The Texas Council for Developmental Disabilities believes that the vast majority of people with disabilities, including intellectual disabilities, do not need guardians.

Because of this, TCDD collaborated with the Department of Aging and Disability Services on a pilot program to demonstrate how supported decision-making can be used as an alternative to guardianship. We are also working with other advocates to develop policy recommendations to improve the state’s guardianship system.

Pilot Project Demonstrates Supported Decision-Making

Under a TCDD project, The Arc of San Angelo is in the last year of a pilot program to demonstrate how volunteers can support individuals with intellectual, developmental and other cognitive disabilities in making decisions about their own lives, as an alternative to guardianship. TCDD collaborated with DADS to create this pilot program, under a bill passed by the Texas Legislature in 2009. The three-year project in Tom Green County has trained volunteers to assist in decision making based on the principles of self-determination, matched them with individuals with disabilities with shared interests, and provided support to the volunteers. It has also diverted several court-initiated guardianships.

Supported decision-making is an informal process that usually involves trusted friends or family members who help people with disabilities understand their options, make their own decisions and communicate these choices to others. This allows the individuals to keep their independence and personal rights, instead of transferring control to someone else. Supported decision-making can also be used on a temporary basis while a person with disabilities learns new skills and independence. Guardianship, on the other hand, usually ends up being permanent. It can limit specific areas of a person’s life or revoke all rights and privileges.

Texas is the only state with a pilot program designed to incorporate supported decision-making
into state statute. Advocacy efforts are under way to include supported decision-making agreements as a recognized alternative to guardianship so that judges have more options to use instead of guardianships.

Guardianship and Supported Decision-Making Workgroup

A variety of groups that represent people with physical, mental, intellectual and developmental disabilities; seniors; and the legal community are collaborating to develop policy recommendations to improve the guardianship system. Since June, the workgroup has developed policy recommendations for:

  • A bill of rights for individuals under guardianship (known as wards);
  • Supported decision-making agreements;
  • Alternatives to guardianship;
  • Duties of a guardian; and
  • Changing the term “ward” to “person under guardianship.”

Bill of Rights for Individuals with Guardians

More than 46,500 adults have guardianships in Texas, which removes many of their rights and the ability to control their own life by transferring power to a court-appointed guardian.

Guardianship is a broad restriction of rights and it is important that individuals under guardianship know what rights they keep; such as due process under the law. The Texas Probate Code states that individuals under a guardianship have “all rights, benefits, responsibilities, and privileges granted by the Constitution, and state and federal law, except where lawfully restricted.” However, the code does not indicate what rights are retained. The Guardianship and Supported Decision-Making Workgroup have developed a list of 24 recommended rights. These include the right to live, work and play in the most integrated setting; to visit with people of their choice; and to appear before the court to express their preferences or concerns.

Supported Decision-Making Agreement

Supported decision-making is preferred to guardianship because it is less expensive, provides greater protection of civil liberties, and does not require going to court. Creating a guardianship involves court fees and usually an attorney, while supported decision-making does not. This model protects civil liberties by allowing individuals to make choices and by protecting them from a guardian who may not act in the individual’s best interest or may abuse their power as guardian. Supported decision-making presents the option of a more informal process that involves friends and family instead of specific court-appointed substitute decision makers. The Guardianship and Supported Decision-Making Workgroup has developed a supported decision-making agreement for consideration as an alternative to guardianship.

Increasing Alternatives to Guardianship

While the stated purpose of guardianship is to encourage the development or maintenance of the maximum level of self-reliance and independence of the “incapacitated person,” judges indicate they have no direction on how to achieve this intent. As such, courts routinely use full guardianship instead of alternatives to guardianship. Although alternatives already exist in statute, such as a medical power of attorney or representative payee, they are scattered throughout the code. Advocates recommend that alternatives to guardianship be listed after the purpose statement for guardianship in the Texas Estate Code, with an instruction that alternatives be considered before appointment of a guardian.

Duties of Guardians

Current state law only requires that guardians visit the person every six months and report to the court once a year. Advocates recommend that guardians be required to visit incapacitated individuals who are in a residential setting at least once a month and respond in a timely manner to calls, emails or letters about the person.

Texas Working Interdisciplinary Network of Guardianship Stakeholders

The National Guardianship Network awarded a grant to the Texas Office of Court Administration to establish a Texas Working Interdisciplinary Network of Guardianship Stakeholders (WINGS). This network, which includes a TCDD representative, had its first meeting on Nov. 15, 2013. In Texas, 46,587 adults had guardianships as of August 31, 2013, and 3,686 new guardianships were granted in fiscal year 2012. As the population ages, the number of guardianship cases is expected to rise which increases the need to address issues. WINGS will:

  • Identify strengths and weaknesses in the state’s current system of adult guardianship, as well as less restrictive decision-making options;
  • Address key policy and practice issues;
  • Engage in outreach, education and training; and
  • Serve as an ongoing problem-solving mechanism to enhance the quality of care and life for adults in, or potentially in, the guardianship and alternatives system.

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