A judicial finding of incapacity is required to create a Texas guardianship, as we discussed in our last post. Sometimes, however, guardianships should be avoided even if the proposed ward is an incapacitated person. This post addresses why guardianships are disfavored and the alternatives that allow courts to avoid appointing guardians.
Texas Guardianships Impose Harsh Conditions and Should Be Viewed as a Last Resort
In recent years, Texas legislators and judges have placed increasing importance on treating guardianships as a last resort. When a Texas court appoints a guardian, the court strips away the legal rights and privileges of the ward, including many basic freedoms that many of us take for granted:
- deciding where we live;
- driving a motor vehicle;
- marrying the person we choose;
- voting in local, state, and federal elections;
- consenting to medical treatment;
- spending money on the things we want
As you can see, guardianships impose some of the harshest conditions allowed by law. In some respects, prisoners have more rights and freedoms than wards! Due to the severe restrictions imposed by guardianships, Texas law provides several safeguards to protect proposed wards from unwarranted guardianships. One of those safeguards is the “less restrictive alternatives,” meaning supports, systems, and legal options that provide care to a proposed ward without taking away any rights. By law, Texas courts must first determine by clear and convincing evidence that these alternatives have been considered and determined to be not feasible. In other words, guardianships should only be imposed as a last resort.
Less Restrictive Alternatives May Avoid Texas Guardianships
Less restrictive alternatives are some of the most effective ways to avoid or contest a guardianship. The Texas Estates Code provides a list of alternatives that, depending on the needs of the proposed ward, may stop a guardianship proceeding in its tracks. Here are some of the more common ones:
- Medical Power of Attorney. This person who signs this document, called the “principal,” gives another person, called the “agent,” the power to make medical decisions for the principal. Because the agent has these powers, it is often unnecessary to create a guardianship of the person with duplicative authority.
- Financial Power of Attorney. Confusingly, the official name for this document is “statutory durable power of attorney.” In practice, however, it functions the same way as a medical power of attorney, but instead of granting the power to make medical decisions, it grants the power to make financial decisions. If the proposed ward already has a financial power of attorney, then a guardianship of the estate is often unnecessary.
- Certain Types of Trusts. A trust holds money or other assets to be used on specific purposes to benefit a specific person or persons. Depending on how the trust is set up, it may take care of the financial needs of a proposed ward, which can avoid the need for a guardianship of the estate.
- Representative Payees. A person who receives benefits from the government, for example disability payments, can designate a trusted person called a “representative payee” to manage and use those payments. This is another way that a guardianship may be unnecessary.
- Joint Bank Accounts. The establishment of a joint bank account offers perhaps the easiest alternative to a guardianship.
All of these less restrictive alternatives may or may not avoid the need for a guardianship. That depends on several factors, including the specific needs of the proposed ward. Also, if a proposed ward has already completely lost mental capacity, then some of the alternatives above may not be an option. For example, a person with severe, late-stage Alzheimer’s disease often lacks the mental capacity required to sign a power of attorney.
This post discussed ways that guardianships can be avoided through less restrictive alternatives. In our next post, we highlight the situations when a guardianship is desirable and necessary.
Our Dallas, Texas probate attorneys can help you evaluate whether a guardianship is necessary or can be avoided with less restrictive alternatives. Our team of guardianship lawyers has the experience and know-how to help you navigate the guardianship process. We regularly pursue and oppose guardianships in Dallas, Fort Worth, Plano, Denton, and throughout Texas. Please contact us as soon as possible if you need legal assistance with guardianship matters.