Before the 84th Legislature adjourned, the state passed new laws that widen the window for alternatives to guardianship.
A local man who directs a regional guardianship program has filed what he believes the first or one of the first court applications, under the new laws, to invoke supported decision-making rights for a person under a guardianship.
The new laws, first filed separately as HB 39 and SB 1881, took effect Tuesday, Sept. 1.
The week before, James Taylor, executive director of Family and Court Services, filed an application in the Titus County Court seeking the state’s restoration of competency for 67-year-old Mount Pleasant woman. The local woman meets the criteria outlined in the new law, according to Taylor.
According to the Texas Tribune, over two years ago members of the Texas Judicial Council (TJC), a group that comes up with ways to streamline the state’s legal system, began looking at the state’s guardianship system in the face of an anticipated “silver tsunami as the state’s population ages.”
The over-65 population in Texas is reportedly expected to double by 2040.
The TJC has reported that more than 50,000 Texans now have guardians, a 60 percent increase since 2011, and comprises one of the fastest-growing case types in the Texas state courts.
Rep. John Smithee, R-Amarillo, who sponsored HB 39, was quoted as saying the bill would urge everyone involved in a case to view guardianship as a last resort, or use guardians on a temporary basis. The measure also prevents guardians from moving wards to a nursing home or group home without first notifying the ward’s friends and family; and it requires attorneys involved in a guardian case to have special training.
SB 1881, sponsored by Senator Judith Zaffirini, D-Laredo, establishes the supporter alternative for courts to use.
State Rep. Bryan Hughes explains the laws this way: “These new laws were designed to give more options. Some folks need help but do not need a full blown traditional guardianship. These new procedures are intended to fill the gaps for people like that.”
“The laws should give people more choices and free up our courts for those cases where they are needed most,” Hughes said.
Taylor said, “The passage of the new law is another big win for disability rights because it ensures that the wants and needs of an individual with an intellectual disability are addressed when deciding if a person needs a legal guardian. And, it may allow a 67-year-old Mount Pleasant woman to enjoy the freedom that she has wanted.”
Taylor said, as the only Texas certified guardian serving on the Children’s Policy Council of the Texas Health and Human Services Commission, he advocated for the passage of the combined Senate and House bills, known as the Supported Decision-Making Act.
According to the application for complete restoration of the ward, filed by Taylor as Family and Court Services, Inc. in the Titus County Courts Aug. 21, Family and Court Services, Inc. was appointed successor guardian of the person and estate on Dec. 12, 2013.
That person was described in the court document as a ward born in 1949 who resides locally.
Court records show that the woman’s father obtained guardianship of her several years ago. After her father died, an aunt became her guardian, and in 2013, the elderly aunt resigned, and Family and Court Services was appointed her guardian.
Since that time, the court document reads, the legislature has passed and the governor of Texas has signed a number of bills relating to finding a less restrictive environment than a guardianship for persons whom the court finds has either full capacity or sufficient capacity with supports and services to care for themselves and to manager their property.
In the filing, Taylor, as executive director of Family and Court Services, states that the ward meets the criteria known as Supported Decision-Making Agreement Act, effective Sept. 1.
The court document filed defines supported decision-making as “a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports and medical care the adult wants to receive, whom the adult wants to live with and where the adult wants to work, without impeding the self-determination of the adult.
According to the court document, “under the act, (the ward) can enter into an agreement with a person to assist her making everyday life decisions related to any or all of the following – at her option: obtaining food, clothing and shelter; taking care of her physical health; managing her financial affairs; help her access, collect or obtain information that is relevant to a decision, including medical, psychological, financial, educational or treatment records; help her understand her options so she can make an informed decision; or help her communicate her decision to appropriate persons.
The court document states: “The supporter is not allowed to make decisions for her, only assist her in making decisions.”
“Since Guardian’s appointment, Ward has or has regained sufficient mental capacity to do all of the tasks necessary to care for herself and to manager her property or in the alternative to do so with the appointment of a supportive decision maker,” the court document reads.
In the document, Taylor, as the guardian and “Applicant requests the court find that the Ward has full capacity or sufficient capacity with supports and services to care for herself and to manager her property.”
On Aug. 27, an order appointing an attorney ad litem was filed to represent the interests of the ward in the proceedings to restore her capacity.
Lisa Beaird Shoalmire was appointed as attorney ad litem for the ward and, according to the order, will be supplied with copies of all current, physical, medical and intellectual examinations and have access to all relevant medical, psychological and intellectual testing records from physicians and health care organizations and providers relating to the ward’s care, treatment, diagnosis and needs.
Taylor has come under public scrutiny over the past few months from persons questioning his guardianship appointment in a high-profile guardianship case and his reporting to the courts and the amount of his bond in another guardianship case.
He recently (Aug. 14) resigned from the Children’s Policy Council of the Texas Health and Human Services Commission on which he served for more than 10 years “through three commissioners and five legislative sessions,” he said.
“The meetings were quarterly in Austin with more meetings when the session was approaching. It was a lot of work. I’m tired. It’s time to let some other people be appointed to wrap up the council,” Taylor said.
The council has been “sunsetted – 2017,” according to Taylor. “The Texas Sunset Advisory Commission had recommended the discontinuation of the council as part of the reorganization and consolidation of several agencies under the Health and Human Services Commission umbrella.
“There were three great accomplishments that took place while I was on the council,” he said.
He named one as the Medicaid buy-in for children that helps pay medical bills for children with disabilities.
Another, he said was establishing the Texas Task Force for Children with Special Needs charged with developing a strategic five-year plan to provide specific recommendations to improve families’ abilities to navigate the service delivery system, measure and evaluate outcomes, maximize the use of federal funds and improve accountability among service-providing state agencies including state schools and institutions, Taylor said.
“I served on the Juvenile Justice Subcommittee of this task force,” Taylor said. “I have visited many of the state’s facilities as well as local juvenile detention facilities, police departments and juvenile courts across Texas. My task was to assist in the development of guidelines and policy to evaluate and identify juveniles with special needs that may be inadvertently caught up on the state’s juvenile justice system.”
The third major accomplishment Taylor describes as the passage of the alternatives to guardianship law this past Legislative session.
Taylor said his passion for the Children’s Policy Council and for his guardianship work stems from his own personal experience parenting, serving as an advocate for and helping home school his daughter, who was diagnosed after her birth, some 22 years ago, with Down’s Syndrome.
“I became an advocate for my daughter and it didn’t take long for my phone to start ringing. I was receiving calls from other parents with children that had a disability. They were seeking help, like I was,” Taylor said.
He says now his daughter reads at a seventh-grade level.
“She has problems and will always need help. The key word here is ‘help.’ Many people with disabilities can lead happy, productive lives without the necessity of a guardianship,” Taylor said.
Taylor said in 1998 he was chosen by the Governor’s Council on Developmental Disabilities to attend a year-long disabilities advocacy training school in Austin called Partners in Policymaking.
“Myself and some 30 other Texas were taught power of advocacy to change the way people with disabilities are supported, viewed, taught, live and work. Many of the graduates testify before both the Texas Legislature and the United States Congress during each session,” Taylor said.
Taylor said a little over four years ago, it became apparent to him and his wife that their daughter would outlive them.
“She doesn’t really have any physical health problems. She has no siblings. And, we’ve gone down the list of our family members and have pretty much checked the ‘No’ box on all of them,” Taylor said.
“I started the guardianship program with the help of Inez Russell, the director of Friends for Life in Waco. Friends for Life is a guardianship program that now covers 82 counties. My original idea was that Family and Court Services would provide guardianship services for intellectually disabled young adults. To my surprise, there are more older adults that need help than there are young adults,” he said.
“Family and Court Services provides guardianship services for a limited number of people. My biggest task in the past few years has been serving the local court systems as a guardian ad litem,” he said.
“A full-blown guardianship is a drastic measure. It strips people of all other rights. They can’t drive a car. They can’t manage their bank accounts. They don’t get to decide where they will live. They can’t vote. And many times, they are treated like children even if they are 50 years old,” Taylor said.
Taylor said his research showed him that during the 1980s and 1990s guardianships were a “rubber stamp.”
“You could go to sleep at home tonight and wake up in the morning with a new title – ‘Ward.’ There was little regard for due process.”
But over the past four and a half years, Taylor said he has participated in seven or eight restorations.
“That’s probably more than any other certified guardian in the state of Texas has done,” he said.
