The last few years saw substantial changes and updates in the probate and estates realm, not the least of which was replacement of the prior Texas Probate Code with the Texas Estates Code. In guardianships, the most important changes directed an exploration of “less restrictive alternatives” to guardianship, making proving the necessity for a guardianship more difficult. Additionally, another hour was added to the required learning for an attorney to qualify to serve in an ad litem capacity in the probate courts, as well as a new requirement that attorneys representing applicants for guardianship also obtain the four-hour training previously only required of those wishing to serve in an ad litem capacity. These requirements have resulted in the courts stressing the importance of consideration of less restrictive alternatives to guardianship of the person and/or estate.

Guardianships are court-supervised, and by necessity strip the incapacitated person of some or many rights possessed by most adults, such as the right to vote and decision whether to marry. Guardianships of minors and adults arise out of legal incapacity (such as birth defects, accidents resulting in damaged mental function, and age-related mental decline). Out of this rather significant legal power and duty to made decisions for another combined with stripping away of rights of another arose the focus on less restrictive alternatives to guardianship, and the resultant reluctance of the courts to establish guardianships without sufficient evidence that less restrictive alternatives are inadequate. (See Texas Estates Code §1001.001.)

The definition of “Alternatives to Guardianship” (Texas Estates Code §1002.0015) offers a non-exclusive list of less restrictive alternatives, including medical and durable powers of attorney, representative payees, convenience accounts, various trusts, and person-centered decision-making. Other options are included in the list of “Supports and Services,” a comprehensive but not exhaustive, suggestion of supports and services available in the appendix of the often-cited Tarrant County Ad Litem Manual, about which all attorneys handling guardianships in the state of Texas should know. (Some examples include Adult Protective Services, Area Agencies on Aging, food banks, DADS (Texas Department of Aging and Disability Services), MHMR centers, support groups for particular diseases and conditions, religiously affiliated charities, Meals on Wheels, and behavioral support services.)

The Texas Estates Code Ch. 1357, Texas Health and Safety Code and Texas Family Code all contain provisions regarding surrogate decision-making (SDM) for both minors and adults, and the Estates Code addresses supported decision-making agreements, which are somewhat similar to powers of attorney, but consist of an agreement between 1) an adult with disabilities regarding activities of daily living but is not legally incapacitated and 2) a “supporter” who a) is willing to assist in understanding the options, responsibilities and consequences of life decisions without actually making those decisions for the disabled adult and without impeding the disabled adult's self-determination; b) obtains relevant information necessary for the disabled adult; c) understands the information gathered; and d) communicates the disabled adult's decisions to appropriate persons. A permissive form is supplied in the statute.

Managing conservatorships (covered in the Family Code) are common in divorce proceedings, and are good substitutes for a guardianship of the person of a minor, but only when there is no issue of assets or an estate of the minor, as the Family Code provides no monitoring mechanism for property management.

Conversely, with estates and assets of an incapacitated person, living trusts (revocable inter vivos trusts), guardianship management trusts and special needs trusts are excellent tools that allow a trustee more freedom to act than a guardian of the estate would enjoy, provided the trust was drafted by a knowledgeable attorney and is coordinated with other appropriate estate planning tools.

Powers of attorney are popular alternatives to guardianship, but only if the person had legal capacity to grant the powers when executed; beware however, banks, bankers, title companies, stockbrokers and others are not always willing or prepared to accept powers ofaAttorney, despite the legality of the documents. Another drawback is the lack of an effective monitoring or checking of the agent's activities, despite duties to inform and account to the principal of actions taken and to maintain complete records of actions taken. (See Texas Estates Code §751.101).

With longer life spans and age-related deterioration of mental faculties on the rise, another possibility is community administration, which allows for one spouse to act in the capacity of “community administrator” to manage, control and dispose of the entire community estate without the necessity of a guardianship upon findings by the Probate Court that the other spouse is incapacitated, it is in the best interest of the incapacitated spouse to have the other spouse manage the community property, and the administrator spouse would not otherwise be disqualified to be appointed (same qualifications of a guardian of the estate). Texas Estates Code Section 1353.002 provides that the administrator may be required to return an inventory and accountings, and a guardian of the estate may retain management rights over some specified varieties of real and personal property. The community administrator is considered in the context of a guardianship application and is not itself a separate freestanding application.

There are many statutory and nonstatutory alternatives that qualify as less restrictive than guardianship and it is incumbent upon attorneys in the probate arena to be aware of and conversant with the new requirements and the fact that the courts are now requiring that less restrictive alternatives be considered and ruled out as not adequate prior to establishing a guardianship.

Elizabeth P. Ardanowski practices state and federal litigation, as well as probate and estate planning and litigation, and has been handling guardianships (both simple and contested) on both sides of the docket for well over a decade. She has a Juris Doctor from Baylor University School of Law and a Bachelor of Journalism in Public Relations from the University of Texas at Austin, and she is an adjunct professor of media law and ethics at Texas Wesleyan University.