Texas guardianship bill seeks to strengthen individual rights

By Lou Ann Anderson | Watchdog Arena

A Tuesday hearing before the Texas House Committee on Judiciary & Civil Jurisprudence addressing HB 3914 rekindled the ongoing debate over abusive guardianship. Reform advocates call the system one-sided and exploitative even as probate court personnel and associated parties defended the status quo.

State Rep. Stephanie Klick, R-Fort Worth, introduced HB 3914, explaining how news coverage of high profile guardianship cases have made the public more aware of processes that occur in probate courts. The bill, she said, is to strengthen the due process of those proceedings while providing new protections and rights to persons alleged to be incapacitated by court-initiated guardianship proceedings.

“While we want to protect those truly incapacitated who might be at risk of being abused or exploited,” Klick noted, “the number of cases making news has been people who left you with the impression they didn’t really need a guardianship.”

Klick called guardianships “a pretty intrusive procedure.”

Guardianships can be of a person, of an estate or both. Depending on which, a person potentially cannot enter into a contract. They typically lose access to and control of their financial assets and physical property. Guardianships can cause a person to lose access of whom they can associate with. They can make no decisions regarding living arrangements or medical treatment. They can’t even vote.

HB 3914 seeks to establish additional requirements for court-initiated guardianship proceedings. It first calls for appointment of a guardian ad litem or court investigator to determine if the person is incapacitated and if a guardianship is necessary.

If a court appoints a guardian ad litem or court investigator, the bill calls for the following additional requirements:

• The alleged incapacitated person may petition the court to have the appointment set aside.


• The guardian ad litem or court investigator must provide notice to the person of their right to petition the court for the appointment to be set aside.

• Within 48 hours of the order appointing the guardian ad litem or court investigator, that individual shall provide a copy and discuss the contents of the order with the alleged incapacitated person.

• The court shall hold a preliminary hearing to determine a need for further investigation within reasonable time after the court appoints the guardian ad litem or court investigator.

In the establishment of probable cause for an investigation, the bill also requires an affidavit (opposed to a non-sworn information letter) from an interested party alleging facts or a written letter or certificate from a physician meeting certain requirements.

Seemingly simple, common sense measures easily gain favor of those having been targeted for unwarranted guardianships. And though these hearings are usually filled with legal industry practitioners willing to dispute the need for such enhancements, Tuesday’s hearing took a different tone.

While Travis County Probate Judge Guy Herman reportedly signed up to testify against the bill, a nearly four-hour delay in the hearing’s start likely deterred Herman and another half-dozen bill supporters’ testimony.

Of those remaining, critics told stories of guardianship abuse, of the administrative ease and casualness of process often seen within these cases.

Debby Salinas Valdez, director of Guardianship Reform Advocates for the Disabled & Elderly  (GRADE), discussed the corporatization of guardianships.

Valdez testified how her organization receives calls from all over the state – specifically from Texas locales where probate courts are doing business with guardianship service providers that the Estates Code refers to as guardians and “more than likely that you all believe are guardians. “

“We need to begin focusing on the difference because family guardians aren’t the only ones who abuse, neglect and exploit their elderly and disabled family members,” Valdez said.

“As a matter of fact, you think back 10 years and there were few complaints about guardianships,” she continued. “You hear more complaints because Texas doesn’t have a mechanism to protect from guardianship service providers other than the judges who appoint them.”

A total of seven witnesses testified in support of the bill, none against. Upon Klick closing the hearing, Committee Chair John Smithee, R-Amarillo, noted a number of guardianship bills have come before his committee.

“The committee has become very aware of this issue,” he told Klick. “We appreciate your bill and hopefully the legislature will do something along these lines.”

“I know we all see the problem that exists and want to move forward on that.”

After Tuesday’s hearing, HB 3914 has since been reported favorably without amendments for further consideration.

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Texas guardianship bill seeks to strengthen individual rights