[dbmat] Fwd: Our Issues: Guardianship Alternatives

  • From: paul welch <pwelch@xxxxxxxxxxxxx>
  • To: dbmat@xxxxxxxxxxxxx
  • Date: Mon, 23 Nov 2015 15:09:48 -0600



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From: CTD Messenger <info@xxxxxxxxxxxxxxxxxx>
Date: November 23, 2015 at 9:30:44 AM CST
To: pwelch@xxxxxxxxxxxxx
Subject: Our Issues: Guardianship Alternatives
Reply-To: info@xxxxxxxxxxxxxxxxxx


November 23, 2015

Keeping Your Rights!: Guardianship Reform & Alternatives in Texas


In 2013, CTD and a number of our partners noticed a growing problem. Older
Texans and people with intellectual and developmental disabilities (I/DD)
found themselves in situations where they were no longer in control of their
assets and living situations. Or they had been legally cut off from family
members for reasons no one could ascertain. These individuals had been placed
under guardianship, a legally binding agreement that allows a person (the
guardian) to make major decisions for another person (the ward).

The Office of Court Administrators reports that 51% of people under
guardianship have I/DD (source: Texas Guardiship Cases report).

Traditional Guardianships

As former HHSC executive commissioner Tom Seuhs put it: Imagine if you had
your freedom to make decisions about where you live, whom you associate with
and your right to decide medical treatments and financial activities taken
away, as well as losing your right to vote and to marry. That’s what can
happen when you’re placed into guardianship. (source: Austin
American-Statesman)

Guardianship was designed to protect a person who is deemed by a court to be
unable to make decisions for him or herself. The person is placed under a
Guardianship of the Person or the Estate, and a judge appoints some one else
to be the guardian (who the ward may not know). A judge can also place a ward
under full guardianship, which results in a forfeiture of all rights
regarding personal and financial decisions.

In many cases, guardianships function as they were intended, where the
guardian acts in the genuine best interests of his or her ward. However,
abuse and neglect can happen, and when the ward has limited legal rights or
means to help themselves, dangerous situations can emerge.

In so-called Guardian Industry cases, a guardian is appointed to many
different people at once and may take financial advantage of their situation.
Some guardians do the bare minimum to maintain the appearance of adequate
care for their ward, while collecting fees to do more.

In other cases, a guardian isolates the ward from his or her life and social
network. Take the now-famous story of Jenny Hatch, a 29-year-old woman with
Down syndrome who legally fought her mother and stepfather’s request for
guardianship over her. They insisted that a group home environment away from
her friends and her job was best. Jenny disagreed entirely. After a long
legal battle, Jenny convinced a judge that she was capable of making her own
decisions with a little support, and he gave her friends temporary
guardianship. This paved the way for other people with disabilities to gain
more control over their own lives.

Learn more about the Jenny Hatch case or visit The Jenny Hatch Justice
Project to see how she’s helping others.

Supported Decision Making

Jenny's case resulted in a Supported Decision-Making (SDM) agreement, an
alternative to guardianship that has garnered considerable attention in
Texas. Simply put, SDM enables people to receive assistance from one or more
trusted friends, family members, professionals or advocates to make important
decisions. It is distinct from traditional guardianship in that a person can
receive support without giving up rights. Not unlike an ASL interpreter, the
supporter is a go-between, rather than a substitute, for the person they
serve.

Read our guest blog by the Arc of Texas' Megan Morgan on how a supported
decision making agreement works.

Guardianship and SDM in Texas

This legislative session, Texas became the first state in the country to
formally implement SDM, in addition to passing a number of guardianship
reform measures, including a Bill of Rights for people under guardianship and
a requirement that courts consider whether a guardianship may be averted or
limited.

It may seem surprising that Texas is the first state in the country to make
such great strides. On one hand, the self-reliance and self-determination
that lie at the heart of SDM align perfectly with Texas' values. On the
other, our state consistently rates low in the treatment of people with
disabilities in general and I/DD in particular, independent living, and
access to support. But the success of SDM and traditional guardianship reform
in Texas is no accident, and we can use this example to learn to become more
effective advocates. Several things facilitated this success:

In 2009, State Senator Judith Zaffirini passed a bill to launch a SDM pilot
program in San Angelo, Tx. The pilot demonstrated how volunteers could
support individuals with intellectual, developmental, and other cognitive
disabilities in making decisions about their own lives. It also helped avoid
several court-initiated guardianships.

In addition, the SDM cause was championed by a specific group: the
Guardianship Reform and Supported Decision-Making (GRSDM) Workgroup. The
group consisted of a wide swath of key players at several different levels of
government and advocacy:

organizations for seniors and people with disabilities, including CTD
lawyers and legal groups
lobbyists
allies in the judicial branch
a bipartisan corps of legislators, notably, Senators Zaffirini and Charles
Perry and Representatives John Smithee, Bill Zedler, Bryan Hughes.
The GRSDM Workgroup organized at the close of the 2013 legislature and spent
the following year and a half developing clear, targeted policy goals for
2015.

---

Take Action!

While CTD considers helping to pass guardianship reform one of our biggest
successes this session, the work is not finished. The GRSDM Workgroup was
unable to pass some of our priorities in 2015 regarding respectful language
and duties of the guardian.

Join our Guardianship Action group to stay in touch about these changes and
ways to get involved next session!
Considering guardianship or one of its alternatives for yourself or a family
member? Check out the following resources:

The Arc of Texas' Supported Decision Making Forms and Alternatives for
Self-Advocates and Families/ Supporters
Texas Council for Developmental Disabilities resources on guardianship
alternatives
---

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