Some believe that adult guardianship is a newer concept in Texas, but it has been a part of the law since the creation of the state. Adult guardianship cases were being granted in the mid-1800s. Similarities still exist between today’s laws and those of the 1800s related to guardianships.
How Adult Guardianships are Granted
The threshold for which adult guardianships are measured has not changed that much. Advocacy and protection of the vulnerable remain the primary reasons that guardianships are granted. Individuals with varying diagnosis related to intellectual/developmental disabilities and mental health were the primary people being taken to the judge and jury for a guardianship. In the 1800s guardianships could only be granted once a jury considered a person “insane” or “senile”. Today, a person can request a jury trial for a guardianship, however it is not the standard as was in the 1800s. While the wording has changed over the past 200+ years, the foundation is still the same. An individual must be deemed incapacitated before a guardianship can be granted.
Mental Health Commitments
Another massive change in laws surrounds mental health commitments. In the 1800s, a guardian had the right and authority to commit a person under a guardianship into a psychiatric facility (known at that time as asylums) with little to no objections from the courts. Today, this practice is unequivocally prohibited.
Guardian Requirements
Texas lawmakers continue to alter the law for the protection and benefit of the ward. Many of these changes are to protect the vulnerable from “bad actors” who try to become a guardian for their own personal gain. Some additions to the Texas Estates Code have been audits, reporting requirements, background checks, state registration, training, and fingerprinting for guardianships. The requirements apply to both a family/friend guardian and Private Professional Guardians. All guardians, regardless of their relationship to the ward, should have checks and balances in place to ensure the highest level of integrity and accountability to the ward and to the Court are in place. A guardian must always act in the individual’s best interest; this standard at least has not changed since the 1800s.
Unfortunately, there will be bad actors in any area, and laws are created because people have tried to use the Court system to exploit others. Even in the 1800s there were cases where people would get guardianship so they could take land for pennies on the dollar or move individuals into a mental health facility and take over all the ward’s belongings, including bank accounts.
Over the last 200 years there have been many changes to the laws surrounding guardianship, but some things have remained constant. Acting in a person’s best interest, protection, and advocacy have been the standard for guardianships in Texas since the beginning. Guardianship in Texas is not new, but it is ever evolving for the better.
Do You Need Adult Guardianship Assistance? Hammerle Finley Can Help
If you have legal questions about adult guardianship, schedule a consultation with the experienced attorneys and staff at Hammerle Finley Law Firm.
Courtney Carey is a Texas Certified Guardian and a Care Manager, with experience in Texas Medicaid waiver programs, intellectual and developmental disabilities, mental health, and geriatrics. Contact Hammerle Finley Law Firm to schedule a consultation: www.hammerle.com. This column does not constitute legal advice.
