Guardianship Reform at the Forefront of State Policies

It is easy to criticize a state government, but we should also give credit where it is due.

Texas has been recognized as a model for other states for its Guardianship Abuse Fraud and Exploitation Deterrence Program.

That is guardianship reform, folks, and it is a good thing.  The population of Texans 65+ is projected to double to 6 million by 2030.

Since 2014, the Texas Judicial Council has been studying guardianship proceedings in Texas and recommending reforms.  The results are impressive.   Bills have been passed to expand alternatives to guardianship, add protections for wards, emphasize restoration of a ward’s rights, increase guardianship training and certification requirements for attorneys and guardians, enhance criminal history checks for proposed guardians and create a bill of rights for wards.

Guardianships now have to be registered on a statewide database.

That gives us some real numbers to review.  Texas has 51,000 active guardianships, with $4.9 billion in assets under court and guardian control.  Despite that big dollar amount, anecdotally most of the guardianships are of the person and not the estate.  About 70% of the cases involving a guardianship of the person come from parents seeking guardianship over their special-needs child who turned 18 and needs a guardian for health-care decisions and health insurance.  Many of the other guardianships are for middle-aged or older disabled adults who receive either SSDI or SSI.

As for the money-grab guardianships, in Texas, there is a big push to stymie those types of cases.

Most courts now avoid a guardianship of the estate by setting up a court-ordered management trust with a bank or trust company serving as a trustee.  That keeps a family member or non-professional from investing the guardianship funds and doling out the payments and cuts down considerably on family drama.

Not surprisingly, the high population counties have the most guardianships, with five of them each having more than 2,000 registered guardianships:  Tarrant, Dallas, Travis, Bexar, and Harris.  Denton and Collin counties have between 1001 and 2000 registered guardianships.  About 60 counties do not yet have any registered guardianships.

Ten counties have specialized probate courts with staff and procedures in place to handle guardianships.

The good news is that these counties hold the majority of guardianships – about 30,000.   The bad news is that the remaining 21,000 guardianships are spread out among the 244 counties without a specialized probate court.  Those counties do not have sufficient resources to monitor their guardianship cases.   That lends itself to unfortunate outcomes such as the 3,390 deceased persons still found to be in under an active guardianship in a recent state audit.

There is much work still to be done, such as educating the public about guardianship alternatives.  To that end, here is a cheat sheet:  supported decision-making authority, advance directives, powers of attorney, financial planning and management, trusts, community administrator and surrogate decision making.

The Guardianship Program published a 2019 report with its findings and recommendations.  A link to the report is available on my website at www.hammerle/blog.

 

Virginia Hammerle is board certified in Civil Trial Law by the Texas Board of Legal Specialization.  See hammerle.com for her blog and newsletter sign-up.  This column does not constitute legal advice.