ALTERNATIVES TO GUARDIANSHIP

Because the appointment of a guardian removes some or all adult rights from a person and gives them to a guardian, all available alternatives to guardianship should be evaluated first.  Texas guardianship statutes require that alternatives to guardianship as well as supports and services must be considered before a guardianship can be considered.  There are several alternatives that could meet the needs of the person with an incapacity without a costly and restrictive guardianship. 

 

If a person has done advanced planning prior to becoming incapacitated, one or more of the following options could be a viable alternative to guardianship:

 

Advanced Medical Directives:

 

  1.  The Medical Power of Attorney gives the authority to make medical decisions to a person designated by the signer.  This document does not go into effect until a person becomes incapacitated.
     

  2. The Directive to Physicians allows a person to decide in advance about life-sustaining treatment in the case of a terminal condition or illness.  This document with the Medical Power of Attorney can be used to remove life support or refuse treatment for a terminal condition or illness. 
     

  3. Out of hospital Do Not Resuscitate Form allows a person to make a decision regarding resuscitation by Emergency Medical personnel before it is needed.  If a person is really serious about not wanting to be resuscitated if the heart stops beating, a medical alert bracelet should be purchased.  The bracelet will alert the EMTs know that this document has been executed, even if the document is not available. 

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Financial Advanced Directives:

  1.  The Durable Power of Attorney gives authority to make financial decisions to a person named by the signer.  This document can be customized to become effective at incapacity.  It can include all financial decisions necessary or name specific financial decisions to be made by the attorney-in-fact.  This document must be notarized to be legal.
     

  2. Joint tenancy bank accounts are also an option if the only assets to be managed are bank accounts. 
     

  3.  Trusts can also manage assets without the need for guardianship if set up before a person becomes incapacitated. 
     

  4. The appointment of a representative payee for benefits paid by a federal agency is an option if managing monthly income is needed.  If the income is being paid from a state or corporate pension plan, guardianship will most probably be needed to manage income. 
     

If no planning was done prior to incapacity, there are still some alternatives that might be an option.

 Alternatives to Guardianship of the Person:

 
1. The Consent to Medical Treatment Act (Health & Safety Code Chapter 313) gives legal authority to make medical decisions to a surrogate in the event of incapacity. 

The surrogates are considered in the following order:

 

  • The patient’s spouse

  • An adult child who has a waiver from all other children to act as sole decision-maker

  • A majority of the patient’s reasonably available adult children

  • The patient’s parents

  • An individual clearly identified to act for the patient by the patient before incapacity, such as the nearest living relative or a member of the clergy.

(NOTE:  It is important to note that a surrogate under this statute cannot make decisions regarding voluntary inpatient mental health services, electro-convulsive treatment or the appointment of another surrogate decision-maker.)
 

2.  A Mental Health Commitment can provide inpatient treatment to a person in a mental health crisis without the need for guardianship.

3. An Order of Protective Custody can also be used to remove a person from an unsafe environment to a safe place.  However, if the person refuses to stay in the new safe environment, guardianship may be necessary.  Guardianship is the only legal action that can remove an adult’s right to make decisions about where to live.

4.The Supported Decision-Making Agreement is the newest alternative to guardianship.  Chapter 1357 of the Texas Estates Code established the use of Supported Decision-Making in Texas in 2015.  This is designed for adults with disabilities who need assistance with decisions regarding daily living but are not incapacitated under the law. 

An adult with a disability can appoint a “supporter” to do any or all of the following:
 

  • Provide supported decision-making, including assistance in understanding options, responsibilities and consequences of the adult’s life decisions (NOT making decisions for the disabled adult)

  • Assist the adult in accessing, collecting and obtaining information that is relevant to a life decision

  • Assist the adult to understand the information collected

  • Assist the adult in communicating the adult’s decision to appropriate persons.

(NOTE:  It is important to understand that the “supporter” does not make decisions for the adult with disabilities and only assists in the above duties.  This alternative to guardianship works best with adults with mild mental disabilities.) 
 

Alternatives to Guardian of the Estate

1. Money management/bill-payer assistance is available through non-profits in some areas of the state if there is no family to assume this role. 

2. Representative Payee appointment by the Social Security Administration gives the payee authority to receive Social Security and SSI on behalf of the person.  The Veteran’s Administration and the United States Civil Service Retirement System also have fiduciary or payee policies available for individuals unable to manage the benefits paid through those federal systems. The payee is legally responsible to the federal agency paying the benefits to spend the monies received in the best interest of the beneficiary of those benefits. 

3. Depositing funds and/or property into the registry of the court will ensure that the court approve all expenditures.

4. Appointment of a temporary Guardian of the Estate can provide legal authority to make financial decisions in an emergency situation.


The Texas statutes also include “Supports and Services” as alternatives to guardianship.  “Supports and Services” is defined as available formal and informal resources and assistance that enable an individual to:

  •  Meet the individual’s needs for food, clothing or shelter;

  • Care for the individual’s physical or mental health;

  • Manage the individual’s financial affairs; or

  • Make personal decisions regarding residence, voting, operating a motor vehicle and marriage. 

“Supports and Services” expands the formal Alternatives to Guardianship previously discussed to include more informal support of family, neighbors, a church family or a social service agency that might provide transportation, case management services and encouragement as needed. 

The Texas Guardianship Association expresses thanks to the authors who wrote the training modules for Baylor University Guardianship Certificate Course, which is a joint project by the Baylor University’s Diana R. Garland School of Social Work, the Texas Guardianship Association, and Friends for Life.

TEXAS GUARDIANSHIP ASSOCIATION | (979) 942-3434