LESS RESTRICTIVE ALTERNATIVES
Although the policy of the State of Texas relating to guardianships has always been to limit the guardianship to what is necessary to promote and protect the well-being of individuals, in practice it has not always seemed to be the case. In furtherance of that policy, the past few years have seen several changes in the guardianships laws. The Courts recognized that it is not always in the Ward’s best interest to have a full guardianship and removing all of the Ward’s individual rights. In some instances, the Ward may be fully capable of making their own health care decisions but may need assistance with managing money and paying bills. In other instances, a family member may be a joint owner on a bank account and is able to pay the bills and manage the finances accordingly.
Some of the changes include the requirement that any guardianship attorney that represents an applicant in applying for guardianship must now be certified as having completed a four hour guardianship course, with one hour specifically on the topic of “less restrictive alternatives”. So what then, are less restrictive alternatives?
Before filing an application for guardianship, the applicant’s attorney must determine if there are any courses of action that can be taken to avoid the necessity for guardianship. Some of these options include, but are not limited to, the following:
• Statutory Durable Power of Attorney to handle financial affairs
• Health Care Power of Attorney to handle personal care and medical issues
• Designation of Guardian In Event of Later Incapacity to appoint or restrict those individuals that a person may or may not wish to serve as their guardian when the time comes
• Creation of a Management Trust in lieu of a Guardian of the Estate
• Creation of a Special Needs Trust
• Representative Payee for Benefits
• Supported Decision Making Agreements
There are many more alternatives that may be available in lieu of a guardianship. In the event that these options cannot be utilized, then it may be necessary to file for a guardianship. An experienced guardianship attorney can properly advise clients on the guardianship process and if any of the less restrictive alternatives are a viable option.