Texas guardianship bill moves forward

State Rep. Stephanie Klick, R-Fort Worth, has a bill offering greater protections to those targeted for court-initiated guardianships.

From Watchdog Arena:

A Tuesday hearing before the Texas House Committee on Judiciary & Civil Jurisprudence addressing HB 3914 rekindled the ongoing debate over abusive guardianships. Reform advocates call the system one-sided and exploitative even as probate court personnel and associated parties defended the status quo.

State Rep. Stephanie Klick, R-Fort Worth, introduced HB 3914, explaining how news coverage of high profile guardianship cases have made the public more aware of processes that occur in probate courts. The bill, she said, is to strengthen the due process of those proceedings while providing new protections and rights to persons alleged to be incapacitated by court-initiated guardianship proceedings.

“While we want to protect those truly incapacitated who might be at risk of being abused or exploited,” Klick noted, “the number of cases making news has been people who left you with the impression they didn’t really need a guardianship.”

Klick called guardianships “a pretty intrusive procedure.”

Guardianships can be of a person, of an estate or both. Depending on which, a person potentially cannot enter into a contract. They typically lose access to and control of their financial assets and physical property. Guardianships can cause a person to lose access of whom they can associate with. They can make no decisions regarding living arrangements or medical treatment. They can’t even vote.

HB 3914 seeks to establish additional requirements for court-initiated guardianship proceedings. It first calls for appointment of a guardian ad litem or court investigator to determine if the person is incapacitated and if a guardianship is necessary.

If a court appoints a guardian ad litem or court investigator, the bill calls for the following additional requirements:

  • The alleged incapacitated person may petition the court to have the appointment set aside.
  • The guardian ad litem or court investigator must provide notice to the person of their right to petition the court for the appointment to be set aside.
  • Within 48 hours of the order appointing the guardian ad litem or court investigator, that individual shall provide a copy and discuss the contents of the order with the alleged incapacitated person.
  • The court shall hold a preliminary hearing to determine a need for further investigation within reasonable time after the court appoints the guardian ad litem or court investigator.

Read more at Watchdog Arena.

Integrity within the guardianship process is critical. As guardianship disputes are part of the pay-to-play civil court system, challenges of government-initiated actions are expensive and, for many families, simply cost prohibitive.  Families may have resources to start proceedings, but tactical delays and other ploys can quickly force an abandonment of efforts – even with the most legitimate of cases.

The legal industry including lawyers, judges and other court-appointed personnel as well as those involved with social services and related networks are regular participants in these actions.  They benefit from familiarity with the system and decision-making parties while families or others disputing government guardianship actions instead face dependency on legal practitioners whose long-term professional (and financial) welfare is, in actuality, more contingent upon positive relations with court personnel and opposing counsel than with their own clients.

The pursuit of assets is an obvious motivation for abusive guardianships.  Additional research, however, suggests that prospective wards can have “headcount value” as participants to fill the rolls of taxpayer-funded programs.  Cases continue emerging in which people working as Adult Protective Services employees, professional guardians, other social workers, medical personnel responsible for evaluations (physical and psychological), proprietors of facilities that house incapacitated or disabled individuals involve themselves in what become questionable guardianship cases.

All guardianships are not bad or abusive.  Sometimes they are needed.  However, whether initiated by public or private entities, hijacking the personal liberty or property of any Texas citizen for some self-enriching purpose is wrong.  Motives may be direct financial gain through “spending-down” the person’s assets, indirect gain by adding them to an institutional headcount eligible for taxpayer-funded subsidization or a combination of both.

Passing a law offers no assurance it will be followed. Legal industry practitioners as well as industry observers know that on a daily basis laws are sometimes selectively applied, other times routinely ignored. That said, Klick’s bill offers common sense reforms that are an appreciated step in a positive direction.

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