State laws are designed to prevent predatory behavior.
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| Texas has laws to protect incapacitated residents.(David Plunkert / Special Contributor) |
By Mary Jacobs
It’s a nightmare scenario: A stranger knocks on the door and informs the resident, an elderly woman, that the court has appointed the visitor as her guardian.
The guardian tells the resident to pack her things immediately and whisks her off to an assisted living community. Family members try to step in, to no avail, as the guardian proceeds to sell the woman’s home and plunder her assets. And the most frightening part: It’s all legal.
That’s the opening scene of I Care a Lot, the Netflix movie starring Rosamund Pike, and shockingly, it mirrors the true story of a professional guardian named April Parks in Nevada. (The rest of the movie — involving Russian mobsters, a bag of stolen diamonds and multiple murders — is pure fiction.) Parks ripped off dozens of elderly people in Nevada; she’s now in prison.If you saw the movie and you’re an older adult, you might wonder: Could this happen to me? If so, how can I protect myself?
Legal perspective
First, some good news: Texas has protections in place that prevent the kind of predatory scenario that occurred in Nevada.
“That story is unrecognizable to those of us who practice guardianship in Texas,” says Terry W. Hammond, executive director of the Texas Guardianship Association, an organization of professional and family guardians. “Basic due process has been infused in the system in Texas. But that’s not to say the system is perfect. We still have some work to do to improve our guardianship process.”
Guardianship involves the legal process of removing the rights of a person who is incapacitated and can’t manage affairs because of illness, injury or disability. A guardian may be appointed by a court to manage the incapacitated person, the estate or both.
There are two types of guardians: a guardian of a person who makes medical, residential and similar decisions for that ward and a guardian of the estate who manages property on behalf of a ward.
“Getting guardianship is not an easy process in Texas,” says Hammond, an attorney. “Before an incapacitated person can be assigned a guardian, there must be a court hearing and medical evidence of incapacity. The person is served papers and is entitled to legal representation.” That process usually takes four to six months.
Guardians today
About 50,000 to 60,000 Texans, with estimated assets of $5 billion to $6 billion, are under guardianship in Texas.
Hammond estimates that 75% of those serving as guardians in Texas are family members. The other 25% are professional guardians, most of whom work for nonprofits.
The Senior Source, a nonprofit serving seniors in Dallas County, offers a guardianship program that assists people 50 and older who don’t have family to serve as a guardian or in cases when the court determines that a third party should be the guardian.
“Our program has five certified guardians who step in on behalf of the elderly person to make medical decisions and to apply for benefits [such as Medicaid, Medicare or veterans benefits] to cover the cost of long-term care at a nursing home or rehab facility,” says Meghan Hutchinson, director of the guardianship program at the Senior Source and president of the Texas Guardianship Association.
Short of incarceration or a mental health commitment, guardianship is the most restrictive legal status that can be imposed on a person. Usually it’s invoked to protect vulnerable elders and only as a last resort. For example, if a neighbor is stealing the Social Security checks of an elderly person with dementia or a family member is draining an incapacitated person’s bank accounts, the courts can appoint a guardian to intervene for someone who can’t advocate for himself.
To help prevent abuse and exploitation, the Texas Legislature enacted law in 2004 to license and train professionals who serve as guardians. But given the billions of dollars under the supervision of guardians, Hammond says, there should be more oversight.
Texans will find fairly good oversight in cities like Dallas and El Paso. But in rural counties, where the county judge may be part time and has no legal training, the resources for careful adjudication and oversight are often limited. The Texas Guardianship Association is advocating for the creation of specialized regional courts that are better equipped to adjudicate guardianship cases and oversee them. (At publication time, the Legislature was considering several possible measures, but nothing had been signed into law.)
Protecting yourself
Your best protection against potential abuse or exploitation is planning ahead. Consider how you’d like your affairs to be managed if you can’t do it yourself.
“When people come in for estate planning, the possibility of becoming incapacitated is usually not on their radar,” says Ellen Daniel Williamson, an attorney with Ellen Williamson Law in Dallas. “But it can happen overnight to anyone at any age — a stroke, a car accident, a traumatic brain injury.”
Keep in mind that even if you become incapacitated, guardianship isn’t necessarily invoked unless there are no other alternatives. If a family member with power of attorney is handling the senior’s affairs appropriately, guardianship likely won’t be necessary.
Hutchinson of the Senior Source adds that probate courts investigate the need for guardianship and, if it’s necessary, a judge will decide who will serve as guardian. Courts generally prefer to appoint family members, but if relatives are not willing or able to serve, the courts turn to guardianship programs, such as the Senior Source’s, and private professionals to fill the need. Currently, there are not enough guardians to meet all the guardianship needs.
For that reason, less restrictive alternatives to guardianship should be considered for older adults who need assistance in some areas but are generally functioning independently, she says.
For example, if an elderly man with dementia is forgetting to pay his utility bills, a family member with power of attorney can assist; guardianship isn’t necessary. Similarly, the Senior Source’s Elder Financial Safety Center offers a money management program that helps seniors with that.
“Guardianship is really a last resort option, and it’s not a quick fix,” Hutchinson says.
Thinking ahead
The possibility that you could become incapacitated, temporarily or permanently, is important to consider as part of estate planning. Discuss these documents with your attorney.
A will, a living will and a durable power of attorney: Talk with your attorney and trusted family members about how you’d like your personal and financial affairs managed in the event you’re incapacitated. Remember that it can happen quickly and unexpectedly, due to a stroke or a car accident, for example.
Power of attorney: Remember that you can name different people to handle medical and financial decisions. When granting power of attorney, think carefully. Sadly, many cases of financial exploitation of elderly people are perpetrated by family members.
Declaration of guardian: This is a simple document that contains your wishes as to who you’d like to serve as your guardian should the need arise. You can also disqualify anyone whom you don’t want to be your guardian. You don’t need to share this information, just keep it on file with your will.
Finally, understand that legal guardianship is usually a last resort. If you grant power of attorney to trusted, competent family members, it’s generally not necessary. The exception arises when there are conflicts among family members or a family member acts inappropriately.
Resources
The Senior Source Guardianship Program employs a staff of five certified guardians who serve as legal guardians of people 50 and up at the appointment of the Dallas County courts. The program is funded through contracts with Dallas County and the Texas Health and Human Services Commission and guardianship fees (through Medicaid or court-ordered private pay fees) plus grants and donations. Visit TheSeniorSource.org or call 214-525-6161.
The Texas Guardianship Association is the professional organization dedicated to educating professional family and volunteer guardians in the basics and practices of guardianship. Visit texasguardianship.org.
Attorney Ellen Williamson blogs on topics related to guardianship and estate planning. Visit ellenwilliamsonlaw.com.
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