State and Federal Laws
What is Guardianship?
- Guardianship is a legal tool, which allows a person to make decisions for another person. It removes the civil rights and privileges of a person by assigning control of a person’s life to someone else. The need for guardianship may come from a person’s age, disability or injury.
- Although the state directs a court to "design a guardianship to encourage the development or maintenance of maximum self-reliance and independence of the incapacitated person," it is not uncommon for courts to create full guardianships, which deprive persons with disabilities of the right to make fundamental decisions about their lives.
- Guardianship provides for the person's care and management of their money while preserving, to the largest extent possible, that person’s independence and right to make decisions affecting their life.
- Texas courts have the authority to appoint a guardian with full or limited authority over an incapacitated person. However, a guardianship should be only as restrictive (See Tex. Est. Code § 1001.001(a)):
- as indicated by the person's actual mental or physical limitations; and
- as necessary to promote and protect their well-being.
"…the court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person, including by presuming that the incapacitated person retains capacity to make personal decisions regarding the person’s residence." See Texas Estates Code § 1001.001(b)
Where to start for children becoming adults?
As students with disabilities move into high school, one of the topics that school districts will discuss with parents is guardianship. This discussion typically takes place in an Admission, Review, and Dismissal (ARD) meeting during transition planning. A school district must inform the parents and the student of the “transfer of parental rights” concerning the ARD process. This notice should occur twice:
- At least one year before a student reaches age 18, the student’s individualized education program (IEP) must include a statement that rights granted a parent, other than the right to receive notice under the Individuals with Disabilities Education Act (IDEA), will transfer to student upon reaching age 18 unless someone has been granted guardianship of the student (TAC § 89.1049(a)), and
- At the time the student reaches age 18, the school district must notify, in writing, the adult student and parent of the transfer of rights to the student (TAC § 89. 1049(c)). This notice is separate and distinct from the IEP statement noted above.
What does this mean?
- At age 18, a student is considered an adult and all rights are transferred to that student.
- When a student reaches the age of majority, they are regarded as being able to make their own choices. This would include making choices about their education.
- An IEP is like a contract, it can be enforced in a court. Therefore, an 18-year old student would be responsible for signing and agreeing to the IEP.
- Parents and students with disabilities must look at all options before deciding if the student is responsible enough for the task.
- The transfer of rights occurs regardless of the student’s disability label and/or level of need.
- Before making a decision, families should discuss what supports the student will need, both at present and in the future.
Effective September 1, 2018, transition planning for students must address:
- the use and availability of appropriate opportunities to assist the student in developing decision-making skills, and
- supports and services that foster the student's independence and self-determination, including a supported decision-making agreement.
HHS Guardianship Services Program
The Texas Health and Human Services Commission (HHSC) becomes involved in guardianship in one of two ways:
- The Texas Department of Family and Protective Services (DFPS) refers adults or youth aging out of conservatorships to HHSC when they think need a guardian, and
- In certain limited circumstances the court directly request HHSC to be a guardian.
For adults to be referred to HHSC for guardianship they must either have a disability or be 65 or older and a victim of abuse, neglect (including self-neglect) or exploitation.
For youth aging out to be referred to HHSC for guardianship they must be in Child Protective Services (CPS) conservatorship and appear to meet the adult definition of incapacity.
More information can be found at HHSC Guardianship Overview
Alternatives to Guardianship
For some individuals with disabilities, guardianship may be the only option. In addition to guardianship, there are the following options:
- Power of Attorney
- Management of Community Property
- Money Management
- Social Security Representative Payment program
- Trusts: A legal method used to manage and distribute property without a guardianship.
- Consent to Authorize Advocacy
- Directive to Supported Decision Making
During the 84th Texas Legislative Session in 2015, legislators passed new laws that made Texas the first state to have laws recognizing supported decision-making agreements as an alternative to guardianship. Supported decision-making allows individuals to make their own decisions and stay in charge of their lives, while receiving the help and assistance they need to do so. These laws include:
- The Bill of Rights for a person under guardianship or proposed guardianship. For a person under guardianship these include the right to live, work and play in the most integrated setting, visit with people of their choice, and appear before the court to express their preferences or concerns (See Texas Estates Code Title 3 Subtitle T Chapter 1357 Subchapter A and Texas Estates Code Chapter 1151 Subchapter H).
- The establishment of less restrictive alternatives to guardianship, such as a power of attorney or representative payee, directing the court to determine whether alternatives can meet the needs of the person rather than guardianship.)
- The establishment of Limits to guardianship with services and supports, requiring the court to determine if formal and informal supports are available for individuals to meet their needs.
- The requirement that individuals under guardianship should, if possible, be able to make decisions about where they reside.
Applying for Guardianship
- When an application for guardianship is filed, a court investigator must determine whether a less restrictive alternative to guardianship is appropriate (Texas Estates Code § 1054.151).
- All parties – the applicant, attorney ad litem, guardian ad litem, physicians, and the court - have an obligation to consider less restrictive alternatives and supports and services.
Supports and services include available formal and informal resources and assistance that enable an individual to:
- Meet the individual’s needs for food, clothing or shelter;
- Care for the individual’s physical or mental health;
- Manage the individual’s financial affairs; or
- Make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.
The letter or certificate from a physician supporting an application for guardianship must state (Texas Estates Code § 1101.103(b)(6)):
- Whether the proposed ward would benefit from supports and services that would allow the individual to live in the least restrictive environment; see Texas Estates Code § 1101.103(b)(6) and
- Whether guardianship is necessary and, if so, what powers or duties of the guardian should be limited if the proposed ward receives supports and services, see Texas Estates Code § 1101.103 (b)(6-a).
Before appointing a guardian the following evidence is required (Texas Estates Code § 1101.101(a)(1)(D) & (E) and (c)):
- the probate court must find by clear and convincing evidence that alternatives to guardianship and supports and services have been considered and determined not to be feasible.
- if the court grants a limited guardianship, the court must specifically state whether the proposed ward lacks sufficient capacity with supports and services to make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.
Restoration of Capacity
- A guardianship shall be closed when the court finds that the individual has sufficient capacity with supports and services to care for themselves and to manage their property (See Texas Estates Code § 1202.001(b)(2)).
- The individual or any interested person may petition the court for the full or partial restoration of rights, including the right to decide their residence if they has sufficient capacity with or without supports and services. (See Texas Estates Code § 1202.051(3)).
- The court shall consider whether the guardianship is needed and specific power or duties of the guardian should be limited if the ward receives supports and services. (See Texas Estates Code § 1202.151(a)).
- The court order must state any supports and services needed for the restoration or modification of the guardianship (See Texas Estates Code § 1202.154(a)(4)).
- Before limiting the powers or duties granted to the guardian, the court must find that the nature and degree of incapacity, with or without supports and services, warrants modification and that some of the individual’s rights need to be restored, with or without supports and services (See Texas Estates Code § 1202.153).
- Persons under guardianship can petition the court to retain counsel of their choosing to assist with restoration or transitioning to a supported decision-making agreement, see Texas Estates Code § 1151.351(b) (17).
- HHSC Guardianship Overview
- TCDD Alternatives to Guardianship
- Disability Rights Texas - Using Supports and Services as an Alternative to Guardianship
- National Resource Center Supported Decision Making
- Navigate Life Texas
- TEA Secondary Transition Guide
- Supported Decision Making: An Alternative to Guardianship webinar
- HHSC Guardianship Services program: firstname.lastname@example.org
- Disability Rights Texas:
- Statewide Intake: 800-252-9108
- Sign Language Video Phone: 1-866-362-2851
- Purple 2 Video Phone: 512-271-9391