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Steven D. Fields -Court Administrator/Attorney Tarrant County Probate Court Two 817-884-1049 or [email protected] 1
Steven D. Fields -Court Administrator/AttorneyTarrant County Probate Court Two
817-884-1049 or [email protected]
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A proceeding where a guardian has been given court authority to make personal, medical or financial decisions for an incapacitated person, and the guardian continues to be supervised by the court.
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A child under age 18 - a “minor”- but parents are the “natural guardians” of their children to make personal decisions for them.
If a minor is an orphan or receives money, the court may appoint a guardian for the minor.
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An adult who,
◦ because of a physical or mental condition,
◦ is substantially unable to:
Provide their own food, clothing or shelter
Care for their physical health
Manage their finances
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No, some can go without a guardian due to:
◦ Less restrictive alternatives (LRA) – powers of attorney, consent to medical treatment act
◦ Supports and services (S&S) – resources and assistance to help with decisions (added in 2015)
◦ Must give court clear and convincing evidence that LRA and S&S have been considered and determined not to be feasible (added in 2015).
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Must produce evidence of recurring acts by the person in the six months prior to the guardianship hearing (not isolated instances of negligence or bad judgment)
Must file a detailed letter signed by a doctor who has examined the person within four months of the date the application is filed.
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No, the court may appoint a guardian with either full or limited authority
As indicated by the incapacitated person’s actual mental or physical limitations
And only as necessary to promote and protect the well-being of the incapacitated person
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EC 1002.0015 lists alternatives to GS◦ Medical power of attorney – HSC166◦ Durable power of attorney – EC751◦ Declaration for mental health treatment – CPRC137◦ Representative payee appointed by SSA◦ Joint bank account◦ Management trust EC1301◦ Special needs trust◦ Alternate forms of decision making based on
person-centered planning
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If an individual signed a durable power of attorney (for financial decisions), and
If the individual signed a health care power of attorney (for medical decisions), and
The individual’s incapacity does not cause them to contradict the decisions made by the agents under the POAs, and
The agents act in an honest manner, then
Guardianship should not be necessary!
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Consent to Medical Treatment Act – HSC313If an adult patient: Of a home and community support services agency,or In a hospital or nursing home, or Who is an inmate of a county or municipal jail
Is comatose, incapacitated or mentally or physically incapable of communication, then
An adult surrogate from a priority list, if willing, may consent to medical treatment on behalf of the patient
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The patient’s spouse;
An adult child of the patient (who has the consent of all other qualified adult children of the patient to be the sole decision maker);
A majority of the patient’s reasonably available adult children;
The patient’s parents; or
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The individual clearly identified to act for the patient by the patient before the patient became incapacitated,
The patient’s nearest living relative, or
A member of the clergy
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Consent to Medical Treatment Act does not authorize a decision to withhold or withdraw life-sustaining treatment. (HSC 313.003b)
Surrogate decision makers can’t consent to:◦ Voluntary inpatient mental health services;◦ Electro-convulsive treatment; or◦ The appointment of another surrogate decision-
maker.
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Not if adequate “Supports & Services” are available and feasible to avoid guardianship
EC-1002.031 – Supports & Services are available formal and informal resources and assistance that enable an individual to:◦ Meet the need for food, clothing and shelter;◦ Care for the individual’s physical and mental health;◦ Manage the individual’s financial affairs; or◦ Make personal decisions regarding residence,
voting, driving and marriage
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If a person is incapacitated and receives Social Security benefits, the SSA can appoint a representative payee to collect those benefits to be used for the benefit of the individual.
Representative payees file annual accountings with the SSA and not the court.
If a person receives only SS income, a guardian of the estate is not needed.
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Texas is the first State to adopt a Supported Decision Making Agreement Act in Estates Code 1357 effective 6.19.15.
It’s all the rage in Canada and each province up there has adopted an SDMA Act.
SDMAs were promoted by the disability rights community primarily for those with intellectual and developmental disabilities.
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An adult with a disability voluntarily enters an agreement with a “supporter” to:◦ Provide assistance in understanding options of life
decisions without deciding for the adult
◦ Obtaining information including medical and financial records relevant to decisions (HIPAA release can be attached to agreement)
◦ Assist in communicating adult’s decisions to appropriate persons
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Someone whose incapacity is causing them to act contrary to previously signed POAs or to reject available supports and services.
The first individual who comes to mind is a woman who came into my office in 1994 complaining about Nick Nelson who Judge Bob Burnett recently appointed as guardian for her ex-husband. She had mental illness issues and bad hygiene.
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Still an active GS case – fake name here
Ms. Parsons was 74 years old, and someone called APS to report alleged physical harm.
Ms. Parsons had 3 old vans in her front yard and her house was full of junk and she was living in the yard and was covered in dirt.
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Ms. Parsons would rant and rave at anyone who came near her front yard and she was stealing water from neighbors because she had no utilities and her house was infested by rodents.
APS filed for an Emergency Protective Order to remove Ms. Parsons to a nursing facility.
The court appointed an attorney ad litem to represent the wishes of Ms. Parsons and a guardian ad litem attorney to represent the best interests of Ms. Parsons.
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The guardian ad litem had Dr. Ray Lewis examine Ms. Parsons and he diagnosed her with COPD and early stage Alzheimer’s
Dr. Lewis stated that Ms. Parsons was going through bankruptcy and was depressed.
He concluded that she was totally without capacity to make decisions and care for herself.
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The attorney ad litem requested an independent medical exam, and Dr. Edward Luke examined Ms. Parsons and found her to be totally incapacitated.
Dr. Luke’s report stated “Parson’s remote memory is impaired. She believes she was remarried to her ex-husband and she can’t remember what medications she is taking.”
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The GAL applied for a temporary and permanent guardian for Ms. Parsons.
The court appointed DADS as temporary guardian.
Ms. Parsons demanded a jury trial on the permanent guardianship application.
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DADS worker testified Parsons couldn’t care for herself or meet daily needs, house was unlivable and facilities off and she was unable to make other housing arrangements or manage finances to fix her house and unable to go to store to buy food to prepare it.
Parsons was taking Namenda, Nematine and memory medication for her dementia but was uncooperative with doctors and did not remember what meds she was taking.
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Parsons testified that she had been cited by Code Enforcement for the condition of her house.
Parsons testified that she walked or rode the bus and had not driven for two years but that when she got back home she was going to get “that nice old van they took a picture of out and I’m going to drive it.”
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Parsons testified that she had not written a check in two years
Parsons testified that she did not think she needed to be taking any kind of medication but was not clear on how many times a day she took her meds.
Parsons testified that she wanted to live with a friend but had no idea about cost of rent.
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The jury found by clear and convincing evidence that Ms. Parsons was partially incapacitated and that her rights would be protected by the appointment of DADS as guardian of her person to make residential and medical decisions on her behalf.
She retained the right to vote, marry and to make gifts of personal property.
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Ms. Parsons appealed that the evidence was legally insufficient to support the jury’s finding that she was incapacitated.
Fort Worth Court of Appeals affirmed the jury verdict and found that the evidence presented at trial was clear and convincing evidence of incapacity and the need for a guardian.
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GS of Edwin Wooley is now being considered by the Supreme Court of Texas
Edwin Wooley was living in similar deplorable conditions to those of Ms. Parsons.
APS filed for Emergency Protective Order claiming Wooley’s house was filled with trash, dog feces, rotten food, dirty dishes, and he couldn’t maintain his house and refused to relocate and he forgets to pay his bills.
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Wooley had a daughter who stopped trying to help him because Wooley refused help and was emotionally abusive to her.
APS moved Wooley to a nursing facility and the court investigator applied for a temporary and permanent guardian suggesting that DADS be appointed.
DADS was appointed temporary guardian but filed a plea to the court’s jurisdiction to consider DADS as permanent guardian because DADS didn’t apply or otherwise agree to serve.
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A doctor examined Wooley and diagnosed him with COPD, urinary incontinence, dementia and depression.
The doctor stated that Wooley was totally without capacity to care for himself or manage his property
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DADS stated that it didn’t apply for guardianship because Wooley was now in a nursing facility which was a less restrictive alternative to guardianship.
The probate court denied DADS plea to the jurisdiction, and the Fort Worth Appellate Court affirmed the probate court.
DADS filed for writ to the Supreme Court.
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While case has been on appeal, DADS as temporary guardian had to move Wooley to a different nursing facility because Wooley was making racial slurs to the staff.
DADS brief states that the probate court has no judicial review of DADS decision on what is a less restrictive alternative to guardianship.
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Incapacity leaves a person vulnerable to financial exploitation by a “friend” and no relatives are involved.
An example of this is the case involving the Guardianship of Erma Bays
Ms. Bays was financially exploited by a nice man she met at church.
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Ms. Bays was 93 years old and a social worker completed a suggestion of need for guardian under Probate Code 683 (now EC 1102)
The doctor’s letter suggested she had short term memory issues and congestive heart failure.
Ms. Bays was isolated from neighbors and dependent on a man named Okumu for assistance.
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The court appointed a guardian ad litem attorney who applied for guardianship.
Okumu who was rumored to be a disbarred attorney from Indiana objected to guardianship claiming that he had a power of attorney from Ms. Bays.
Okumu also filed a declaration of guardian signed by Ms. Bays naming him as guardian if she ever needed one.
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The court appointed Wells Fargo as temporary guardian of Ms. Bay’s estate and ordered Okumu to deposit $300,000 into the court registry that he had taken from Ms. Bays bank accounts.
Okumu attended the hearing but refused to deposit the funds, and the judge put him in jail for contempt.
Okumu was in jail for about 5 months.
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Ms. Bays died and had a son in California who was her only heir.
After losing an appeal regarding the court’s right to appoint a temporary guardian without notice to him, Okumu reached a settlement agreement with Ms. Bay’s estate.
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No powers of attorney and no capacity to sign one.
Powers of attorney but incapacity causes person to act contrary to agent.
Agent using power of attorney to exploit incapacitated person.
Need a reasonable medical procedure yet incapacity causes them to reject it.
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Report to APS Hotline 800-252-5400
Hire an attorney who has guardianship certification letter from State Bar of Texas by calling 817-336-4101 Tarrant County Bar
Court Initiated Suggestion of Need for Guardianship under Estates Code 1102
Probate Courts at www.tarrantcounty.com
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