What’s New in Guardianship

INTRODUCTION – A FUNDAMENTAL PARADIGM SHIFT

In 2015, the Texas legislature overhauled substantial portions of the Texas Estates Code (“TEC” or the “Code”). Many of these changes have had, and will continue to have, a major impact on how guardianships are established and administered. If guardianship law has represented a significant part of your practice, many of the rules you have relied on have changed. For those new to the guardianship practice, you have arrived just in time to become familiar with these changes along with the rest of us.

Significant change occurred in three areas. Alternatives to guardianship, including supports and services, are now clearly as important an analysis as the traditional “less restrictive alternatives.” Likewise, proportional powers should now be implemented to prevent guardianships that are too expansive. Finally, litigating a contested guardianship may be a bit more challenging than before. In hindsight, the Legislature’s intention, or at least the effect, should be easy enough to see – limit the number of guardianships, tailor their scope, and limit the economic impact of “nuclear” guardianship litigation.

The first major set of changes involved requiring Texas courts to consider “alternatives to guardianship” when establishing a permanent guardianship. 1 Essentially, in establishing a guardianship, the court is now required to find by clear and convincing evidence that alternatives to guardianship and supports and services that would avoid the need for guardianship were considered but were determined not to be feasible (the “Alternative to Guardianship Analysis”). The Alternative to Guardianship Analysis appears throughout the Code. For example, TEC § 1101.001 requires the Court when establishing a guardianship to find, by clear and convincing evidence, that alternatives to guardianship and supports and services that would avoid the need for the appointment of a guardian have been considered and determined not to be feasible (this is the same evidentiary standard applicable to determining whether a proposed ward is incapacitated). TEC § 1054.004 requires an attorney ad litem to discuss with the proposed ward whether any alternatives to guardianship exist that would meet the needs of the proposed ward and avoid the need for the appointment of a guardian. Similarly, TEC § 1054.054 requires a guardian ad-litem to investigate whether a guardianship is necessary and to evaluate whether alternatives to guardianship would meet the needs of the proposed ward and avoid the need for the appointment of a guardian. These changes were presumably made, at least in part, to attempt to honor the proposed ward’s prior estate planning documents and/or to utilize other least restrictive statutory mechanisms, thereby possibly reducing the number of “full guardianships” being created in Texas.

The second set of changes concerned additional requirements to ensure that the powers conferred on a guardian are proportional to the ward’s actual mental or physical limitations and are granted only as necessary to promote and protect the well-being of the ward. The court must “design the guardianship to encourage development or maintenance of maximum self-reliance and independence in the incapacitated person.” See TEC § 1001.001. For example, the physician’s certificate under TEC § 1101.103 (the “Doctor’s Letter”) now requires the physician to: (I) state whether improvement in the proposed ward’s physical and mental functioning is possible and if so, to state the period in which the proposed ward should be reevaluated (to determine whether a guardianship is still necessary); and (2) state (if a guardianship is necessary) whether specific powers or duties of the guardian should be limited if the proposed ward receives supports and services. If the Doctor’s Letter stated that improvement in the ward’s physical condition or mental functioning is possible and specified a period of less than a year after which the ward should be reevaluated to determine whether there is a continued necessity for the guardianship, then the order appointing a guardian must include the date by which the guardian must submit to the court an updated Doctor’s Letter. The ward is now presumed to retain the capacity to make personal decisions regarding his or her residence. To remove this right (along with the right to vote, drive, and marry) the order appointing a guardian with full authority must include a finding that the proposed ward does not have the capacity to do these actions. In a partial incapacity case, the order appointing a guardian must state whether the proposed ward lacks the capacity, or lacks sufficient capacity with supports and services, to make personal decisions regarding residence, voting, operating a motor vehicle and marriage. The final set of significant changes to the Code were more procedural. For example, an interested person now must obtain court permission to intervene in a guardianship proceeding.  Additional notice provisions were also added in an attempt to keep family members better informed during the administration of a guardianship. Finally, certain attorney’s fees and costs provisions were strengthened in an effort to minimize the ever-increasing cost that protracted guardianship litigation can have on a proposed ward’s estate.

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