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.
