The Changing World of Guardianships Susan M. Redford Judicial Program Manager

The Changing World of Guardianships 2015 Legislative changes A new philosophy for guardianships What the future holds

2015 Legislative Changes HB 39 HB 1438

Attorneys and Guardianships Attorney filing an application for appointment of a guardian must have guardianship certification. Four hours CLE in guardianship Including one hour re: alternatives to guardianship and supports and services available to wards Same certification as is required for court appointees

Attorneys and Guardianships How to check if applicant’s attorney is certified? http://www.texasbar.com/am/customsource/wrapper/members/onlinetools/ApprovedGuardianshipAttorneys.asp Bookmark it or just Google “Texas bar guardianship certification” every time.

Court Initiated Investigation Sec. 1102.001 Order appointing investigator or ad litem must include statement advising person being investigated of their right to petition the court to set appointment aside Can occur after the date of initial meeting with investigator but before the application for appointment of guardian is filed

Court Initiated Investigation Sec. 1102.006 If a request is made to a financial institution for records, court must provide written notice to person being investigated not later than the 5th day after the records have been produced

Changes to Physicians Letter Must include whether can make decisions regarding residence Must state whether condition may improve If yes, when should be reevaluated Court must then set hearing reevaluate if grants guardianship (Sec. 1101.153)

Criminal History of Proposed Guardian Sec. 411.1386 Government Code Clerk shall obtain criminal history Removes familial restriction Potential criminal liability (Sec. 411.1386(e)) Unauthorized disclosure Class A misdemeanor

Right to Determine Residence Sec. 1001.001(b) Estates Code Encourages courts to maximize independence of person under guardianship Adds presumption regarding determination of residence Preponderance of the evidence Must be added to Application and Order

Compensation of Guardian Ad Litem Sec. 1102.005 Guardian Ad Litem or Court Investigator can be compensated out of a Management Trust Can be existing trust or a trust created as a result of the investigation

Costs of Guardianship Court costs of proceeding paid by: Guardianship estate Management Trust Party incurring the costs (Sec. 1155.151) Excludes ad litems, governmental entities and non profit guardianship providers Treasury of the county

Intervention Only interested persons may intervene On motion, stating grounds and purpose. Would intervention unduly delay or prejudice adjudication of original parties’ rights? Does proposed intervenor have adverse relationship with ward or proposed ward that would unduly prejudice adjudication of original parties’ rights?

Access to Ward Relative of ward can ask for access: Spouse, parents, siblings, children Court shall schedule hearing within 60 days after application for access is filed. Can continue for good cause. Guardian must be cited, personally served Within 21 days before hearing.

Access to Ward If ward’s health is in significant decline or death is imminent: Hearing held within 20 days after application in filed. Cite & serve guardian as soon as practicable.

Change of Residence New limitations on guardian’s ability to place ward in more restrictive environment Guardian must give notice to Court, Ward and anyone who has requested notice.

Change of Residence If ward or “another person” objects to proposed placement before 8th business day after person’s receipt of notice, court must hold hearing and issue order. If court doesn’t set hearing within 7 business days, no order is necessary. Exception: “in cases of emergency”

Transfer of Guardianship Sec. 1023.005 If Court approves transfer, existing bond remains intact until a new bond has been given or a rider has been filed Sec. 1023.010 Receiving court shall hold a hearing within 90 days Require guardian to give new bond; or file rider to existing bond for new court

New Philosophy for Guardianships

Less Restrictive Alternatives Traditional Estate Planning When the alleged incapacitated person has some trouble with executive functions but can still understand they need assistance Financial power of attorney Medical power of attorney Trust Directive to Physicians

Less Restrictive Alternatives Supports and services Money management programs Home care, group home, assisted living

Supported Decision Making Adult with disability Physical or mental impairment Voluntarily enter agreement with someone willing to help make life decisions Decisions not made by supporter Access to all necessary information

Supports and Services Court must find by clear and convincing evidence Alternatives to guardianship have been considered and are not feasible Available supports and services have been considered and determined not to be feasible Estates Code Sec. 1101.101(a)(1)(D) & (E).

What the future holds

What the Future Holds Expand Guardianship Compliance Project (SB 667) Require submission of annual reports and annual accountings through a state guardianship reporting portal (OCA) Develop statewide Guardianship Registry (OCA)

What the Future Holds All guardians not currently required to be certified to register with the Judicial Branch Certification Commission (SB 37) Establish public guardian offices in counties Establish regional specialized guardianship courts Establish more statutory probate courts (multi-county)

Sometimes it is a thankless job!

susanr@county.org (432) 413-7840