TGA’s Response to Governor Abbott’s Veto of SB667

“The Texas Guardianship Association has advocated for more than twenty years for a caring, responsible, and comprehensive system to care for vulnerable adults by protecting them from abuse, neglect, and exploitation when court-imposed guardianship is necessary. The guardianship community and other advocates came together to unanimously support Senate Bill 667, sponsored by Senator Judith Zaffirini, which would have provided the Texas Office of Court Administration with funding to independently audit guardianship cases in Texas courts to ensure that court-appointed guardians are in compliance with the Texas Estates Code. The veto of this bill by Governor Abbott was not only surprising but also highlights the need for enhanced understanding of the need for protection of adults with diminished capacity at the highest levels of our state government.

While it is true that the Governor has signed into law a number of guardianship reform bills over the past two legislative sessions, these bills were primarily designed to impose additional responsibilities on guardians, who are most often family members who may not know or fully understand their duties as guardians. Lacking in the reforms to date have been provisions that would assist the courts in ensuring that court-appointed guardians are in compliance with these progressive statutes.

The Governor’s veto of funding for Senate Bill 667 prevents the Office of Court Administration from having the funds and staff necessary to ensure that every guardian in every case is in compliance with State law. This bill was the first step in a process that would have assisted Texas courts in becoming more proactive and responsible in ensuring guardians are properly managing the personal and financial affairs of vulnerable Texans.

The Texas Guardianship Association will move forward with a renewed commitment to educate public officials and the private community in Texas regarding additional reforms needed to protect adults in Texas. In this regard, the first order of business is to analyze the challenges faced by general jurisdiction courts in Texas that generally have thousands of active cases without specialized staff to monitor and audit activities by guardians. With more than 50,000 adults and in excess of five billion dollars under management by Texas guardians, this should be the first order of business by elected officials in Texas.”

Terry W Hammond, President of the TGA Board of Directors

Full Article & Source:
TGA’s Response to Governor Abbott’s Veto of SB667

See Also:
Read SB 667

Texas Senator Judith Zaffirini Voices Concerns

Following the indictment of local Judge Jesus “Chuy” Garza, state Sen. Judith Zaffirini called his court “the absolute worst in the state” and a “textbook on cronyism”

“Frankly, it was a category of its own,” Zaffirini wrote in an email to the Webb County Commissioners Court.

Zaffirini, D-Laredo, is requesting the Commissioners Court appoint a successor to Garza, Webb County Court at Law II judge. Garza was suspended without pay Jan. 13 by the State Commission on Judicial Conduct, three days after a grand jury indicted him in the 111th District Court on a misdemeanor influence-peddling charge.

In an email Zaffirini sent Jan. 13 to Webb County Judge Tano Tijerina and county commissioners, she calls for a successor who has the “ability, interest, energy, time and commitment to clean up this dire situation regarding guardianship in that court and who will commit to accountability and transparency in doing so.”

She suggests this successor should preclude anyone who has ties to Garza and who might become involved in a coverup.

Jesus M. Dominguez, one of Garza’s attorneys, declined to comment on Zaffirini’s email.

Reports indicate Garza appointed four local attorneys to the resounding majority of cases, paying them an overwhelming percentage and the highest average of fees paid in his court, according to Zaffirini.

Judith Zaffirini

“I hope you will take steps to ensure that governmental records in (Garza’s) court are not destroyed,” Zaffirini says in her email.

Zaffirini further alleges Garza’s court is what motivated her to pass laws requiring the rotation system for making appointments and monthly reports regarding appointments made and fees paid.

Senate Bill 1876 — authored by Zaffirini and passed in 2015 — directed state courts to use a rotation system for most appointments of attorneys and guardians ad litem, guardians and mediators, while preserving judicial discretion. Ad litem refers to the appointment by a court of an attorney to act in a lawsuit on behalf of another party, such as a child or an incapacitated adult.

All appointments and related payments for attorney ad litem, guardian ad litem, guardian, mediator and competency evaluator are now reported to the Office of Court Administration.

“As your state senator I am keenly interested in helping you address this important and timely issue,” the email states.

In response to her correspondence to commissioners, Tijerina requested Webb County Attorney Marco A. Montemayor take immediate action in addressing Garza’s suspension.

“I strongly feel that removal of office should be considered and would be essential in restoring the trust and integrity in the County Court at Law 2,” said Tijerina in an email obtained by LMT.

Garza, who has served as Webb County Court at Law 2 judge since 1993, was arrested and charged Jan. 12 with one count of gift to a public servant by a person subject to his jurisdiction, a Class A misdemeanor.

The indictment alleges that in January 2015, Garza asked local attorney Shirley Mathis for a $3,000 loan in exchange for appointing her to represent the wealthy Carlos Y. Benavides Jr. estate in a civil dispute. The loan was intended for Christopher Casarez, one of Garza’s court coordinators, the indictment states. Casarez died by suicide Dec. 11 in his home in the Lakeside Subdivision, according to Laredo police.

Zaffirini’s husband, Carlos M. Zaffirini Sr., represents Leticia Benavides, wife of Carlos Y. Benavides Jr., in multiple civil cases involving Carlos Y. Benavides Jr.’s estate, according to court records.

Oscar O. Peña, an attorney for Garza, said in a statement following his arrest that his client maintains his innocence.

“He intends to investigate the state’s claim and he looks forward to defending himself and putting this matter behind him,” the statement reads. “This is a difficult time for the judge, his family and his friends, but he has faced many challenges in his life and he intends to face this one too.”

Guardianship reports
Zaffirini said in her email that as a member of the Texas Judicial Council and Senate State Affairs Committee, she “received reports and heard extensive testimony that 90 percent … of the guardianship cases in Chuy’s court were not in compliance with state law.”

She wrote that “deficiencies include waived bonds for guardians (though there is no legal authority for waivers), no initial inventory, no annual report and missing assets (including an airplane).”

A 2016 report from the Texas Office of Court Administration indicates Webb County has the highest reporting deficiencies in guardianship cases when compared to the counties of Anderson, Bexar, Comal, Guadalupe, Hays, Lubbock, Montgomery, Orange, Tom Green and Tyler.

Reporting deficiencies included 79 percent of cases missing annual reports of person, 77 percent of cases missing annual accounting reports and 80 percent missing initial inventory reports in Webb County courts at law I and II.

Of those statistics, 97 cases in County Court at Law II were reported as missing annual reports, 88 were missing initial inventories and 79 were missing annual accounting reports.

A supplemental report shows County Court at Law II had 69 open cases where the ward was deceased, eight cases with deceased wards who had assets over $10,000, 84 cases where minors had reached the age of majority and 31 cases where the docket showed expired temporary orders or other miscellaneous deficiencies.

The Office of Court Administration additionally recommended the dismissal of 41 cases in Garza’s court due to guardianship not being established.

Full Article and Source:
Zaffirini Voices Concern

Safeguarding Guardianship: An Interbranch Approach

by Lisa McKinney

The Texas Legislature passed 10 bills in 2015 reforming the legal framework governing guardianship in the state, a feat that Texas state Sen. Judith Zaffirini, who sponsored or co-sponsored all of the bills, attributes to cooperation and communication between the Legislature, which creates guidelines that govern the process; the courts, which are primarily responsible for establishing and overseeing guardianships; and executive agencies that provide public guardianship services for those who do not have appropriate family members to serve as guardians.

“The guardian is a very powerful person, so the courts have tremendous power,” said Zaffirini. She said she understood this most vividly when while a visiting nursing home, a resident named James Ryan requested to see her. He was almost entirely paralyzed due to a stroke, but was able to communicate via a specially-equipped computer.

“He wrote me a letter using his computer, which then read it to me, thanking me for my work,” she said. “I was so moved. To this day my staff and I work with James Ryan.” At his request, Zaffirini and her staff had Ryan transferred out of the nursing home and arranged for a family member to be paid to care for him.

“His mind is clear as it can be, but he felt he had no power—he said he couldn’t even commit suicide if he wanted to,” she said. “You don’t know what is going on in a person’s mind.”

The process for placing an adult under guardianship varies by state, but each branch of government plays a role in ensuring guardianship is a safe and effective mechanism for protecting individuals who can no longer make or communicate sound decisions about themselves and their property, or have become vulnerable to abuse, fraud or undue influence.

“My staff has been instructed to reach out to everyone who is interested in the topic and invite everyone—no matter how deep their disagreement—or whether they support our priorities or oppose them, to come to the table and help us pass even better legislation than we passed last time,” said Zaffirini.

Texas’ Guardianship Compliance Project was born out of this cooperative approach. The pilot project, which is funded by the Legislature and implemented by the Office of Court Administration, was launched in November 2015 to provide additional resources to courts handling guardianship cases. The goal of the project is to help courts make sound decisions in guardianship cases by reviewing current guardianships to identify reporting deficiencies, auditing annual accountings and reporting findings back to the court, and working with courts to develop best practices in managing guardianship cases.

“They have been so successful in investigating the problem (in the pilot counties) that we are going to ask for $3 million to go statewide when the Legislature convenes in January,” said Zaffirini.

In Texas, all guardians are required to obtain bonds—a sort of insurance policy that protects the person in guardianship should the guardian mishandle assets. In one county, the Compliance Project found about 40 percent of cases had guardianship bonds waived, even though there is no statutory authority for waiving bonds. “We realize it is not just a matter of passing good laws, but also enforcing the laws we have,” said Zaffirini. “For example, what good does it do us to pass a law on bonds of a guardian if a judge is going to, without authority, waive that bond? So we have to be vigilant and ensure that the laws that we pass are good laws but that we also pass any additional laws that we need to prevent and identify any abuse in the system.”

They also found numerous cases of guardians mishandling or misusing assets.

“In many cases there is no annual report, there is no initial inventory, there are questionable expenditures and there are missing assets including—listen to this—an airplane,” said Zaffirini. “How do you lose an airplane?”

Zaffirini also engages with the judiciary and other stakeholders through her appointment to the Texas Judicial Council’s Elders and Mental Health committees. The council consists of judges from all levels of the judiciary, legislators and citizen representatives. The Elders Committee makes recommendations to the Texas Judicial Council, and the Working Interdisciplinary Networks of Guardianship Stakeholders, or WINGS, makes legislative recommendations, which Zaffirini and other engaged legislators can carry to the Legislature.

“It is direct engagement,” said Zaffirini.

WINGS, created by the National Guardianship Network, is a partnership between court and community guardianship stakeholders to help states improve judicial processes, protect individual rights and meet needs, address insufficient funding, and ensure guardian accountability and fiduciary standards. In 2013, the program was piloted in four states—New York, Oregon, Texas and Utah. In 2015, it was expanded to Indiana; Minnesota; Mississippi; Washington; Washington, D.C. and Wisconsin.

"WINGS-MN brings together many stakeholders in our state,” said Judge Jamie Anderson of Minnesota’s Hennepin County District Court. “There are approximately a dozen local WINGS groups across the country, so we can learn from each other and avoid recreating the wheel.”

“We work together to brainstorm ways to improve guardianship, work with the community and develop options for avoiding guardianship, when that's appropriate," Anderson said.

Participants in Minnesota include representatives from the Veterans Administration, the Social Security Administration, the state Department of Human Services’ Adult Protective Services, and the Minnesota Association for Guardianship & Conservatorship, as well as the state court administrator and attorneys. Anderson said the group acknowledges the need for guardianship, while also partnering with all the different players involved in the process to improve guardianship and create less restrictive alternatives to full legal guardianship.

Anderson is collaborating with WINGS in Minnesota’s 4th Judicial District to provide online and in-person training for guardians and conservators prior to appointment. Guardians may be required to retake the training if there are issues with timeliness and quality of annual reporting.

Although interbranch cooperation often leads to improved outcomes for those under guardianship, the three branches don’t always agree on the course of action.

“I am in Cook County and the Cook County public guardian had concerns that a number of the pieces of legislation were going too far in taking power away from (his office),” said Illinois state Rep. David Harris, who sponsored a bill clarifying that a temporary guardian’s powers and duties are limited to what is enumerated in a court order. “House Bill 2504 dealt with length of temporary guardianship. I was going to shorten from 120 to 90 days, but the public guardian felt that wasn’t enough time for courts to review.”

Harris said engaging with the public guardian helped him understand what they were willing to compromise on. “You need to get that interaction to make sure the legislation has support to pass,” he said.

Source:
Safeguarding Guardianships:  An Interbranch Approach

See Also:
NASGA:  WINGS