Thomas Suehs, former executive commissioner of the Texas Health and Human Services Commission and member of the Guardianship Reform and Supported Decision-Making Workgroup recently published an opinion piece in the Austin American-Statesman, extolling the benefits of unnamed legislative bills, passed during Texas’ just-completed 84th biennium legislative session, which purport to support Wards during legal Guardianship, which once enacted, typically lasts the duration of the Ward’s lifetime.
Perspective on what other bills were passed during Texas’ 84th biennium that affect Guardianship — like Texas’ HB 1438 — appears to be lacking in Commissioner Suehs’ commentary.
What Tom Suehs fails to point out in his opinion piece is that while Sen Zaffirini and Rep Smithee did indeed pass legislation that would have helped elderly and disabled avoid guardianship through supported decision-making, Sen Zaffirini and Rep Smithee were at the same time instrumental in ensuring Texas Chief Probate Judge Guy Herman, working with lawyers from the Texas Bar’s Real Estate, Probate, and Trusts committee, passed HB 1438 into law.
Signed by Gov Abbott on June 19, 2015, HB 1438 single-handedly undoes any good that the unnamed bills cited by Tom Suehs could possibly make.
What does HB 1438 do that is so contradictory to the goals of supported decision-making? HB 1438 – unanimously passed by Rep Smithee’s Judiciary and Civil Jurisprudence Committee as well by the Senate’s State Affairs Committee of which Sen Zaffirini is a member – allows Texas Chief Probate Judge Guy Herman and his probate courts permission to:
- Go to a prospective ward’s financial institutions and discover the prospective ward’s financial condition prior to the guardianship being in place, in order to ensure there will be sufficient money in place to pay the attorneys’ fees that will become required, to be paid out of the ward’s money. The financial institutions are given the responsibility of notifying their client that the Court has come and against all Federal banking privacy acts, snooped into private banking records of a private citizen without a court order.
- Allow the courts – once they have “investigated” the prospective ward’s personal, private financial records – to require a deposit of the prospective ward’s assets for “safekeeping”. The more money the attorney is able to convince the judge to seize for “safekeeping,” the more the attorney benefits because the amount of bond the attorney must keep on file is reduced. In other words, the prospective ward pays for the attorneys’ bond(s). How does this protect the client AKA prospective or current ward? How is reducing the attorney’s bond by the amount of money the Court seizes from the prospective or current ward offer any protection or help to the ward? Making the ward (or their estate) pay the attorney’s bonds defeats the entire purpose of having a bond – yet that’s the type of regulation that is extremely advantageous to lawyers practicing guardianship law which HB 1438 puts in place.
- “Regardless of whether a guardianship is created for a proposed ward … a court that appoints a guardian ad litem … may authorize compensation of the guardian ad litem from available funds of … the proposed ward’s estate;” HB 1438 allows the Courts to charge a proposed ward’s estate for the cost of the court-appointed Guardian Ad Litem – a position, held by a court-appointed attorney – which controls whether or not the prospective ward, becomes a ward. So even if somehow a person escapes having their Constitutional and Civil rights being removed from them through Guardianship – the prospective ward is still liable for all expenses occurred by the court in the court’s effort to inflict the strongest possible of measures of control over a legally-defenseless human being – Guardianship.
On balance, when the passage of HB 1438 is included in the examination of what the 84th Legislature has accomplished vis-a-vis Guardianship, a clear pattern emerges. Probate Courts and the attorneys who practice Guardianship law in those courts have acquired strong legal measures to force prospective wards – the very wards who are now bankrupted due to their entire assets having been seized by the courts prior to a Guardianship Order – into Guardianship.
It is through laws like HB 1438 that once-wealthy wards end up with no money with which to mount an opposition to their railroading into Guardianship by the same Courts and attorneys who have seized all their money. Since these court and attorneys actions pre-date any Guardianship Order, when does “Supported Decision-Making” come into play?
The passage of HB 1438 shows that Texas Chief Probate Judge Guy Herman and the Real Estate, Probate, and Trusts Lawyers have outwitted any attempts to reform Guardianship law, because they hold all the financial and legal power, while any actions taken under “Supported Decision-making” sound nice but appear to be toothless.