Alternatives to Guardianship
Guardianship is a legal process to determine if a person is “incapacitated.” The court decides if, due to a physical or mental condition, the individual is substantially unable to manage their financial affairs or personal affairs (to provide food, clothing, or shelter for themselves, and to care for their physical health). If a judge decides you need a guardian, someone else will make choices for you and you can lose your rights to drive, choose where you live and work, vote, get married, make your own medical decisions, and more. Note: No agency or school district can require you to seek a guardianship.
Under a guardianship, someone is appointed to make decisions on behalf of the incapacitated person (referred to as the “ward”). There are two main types of guardianships:
- Guardian of the Person: Responsible for the physical well-being of the ward, including making medical decisions and choosing their residence
- Guardian of the Estate: Responsible for the ward’s assets
Less Restrictive Alternatives
Most people with IDD do NOT need a guardian. We advocate for legislation that protects people under guardianships and ensures that it is only used after other less-restrictive alternatives have been considered. People with IDD have repeatedly demonstrated that if they receive the proper supports, they can successfully live more self-directed lives.
What are Alternatives to Guardianship?
Your parents and other people you trust do not need to be your guardian to help you make decisions. Alternatives to guardianship are other ways people can help you make your own choices without mandating that you have a guardian. This protects your independence. Here are some alternatives and supports:
In 2015, Texas became the first state to legally recognize supported decision-making agreements as an informal alternative to guardianship. Using a supported decision-making agreement, a person with a disability chooses someone they trust to serve as their supporter. This person can help the individual with a disability understand the options, responsibilities, and consequences of their decisions; obtain and understand information relevant to their decisions; and communicate their decisions to the appropriate people. The supporter cannot, however, make a decision FOR the person with a disability. Supported decision-making agreements are filled out by the individual and their supporter and specify the ways in which the supporter can help the individual make decisions. These agreements can then be provided to people like doctors and service providers. A person can change their mind at any point and say they don’t want a specific person to serve as their supporter.
Find supported decision-making resources, including an agreement template, on our Resources page.
If a person with a disability receives even a modest amount of money, exceeding $2,000, from an inheritance, a gift, a court settlement, or even from a savings account established on their behalf, they may become ineligible for critical government benefits. However, if the funds are placed in a trust account with The Arc of Texas Master Pooled Trust, government benefits will not be at risk. The Arc of Texas Master Pooled Trust is a solution for managing your funds while preserving government benefits eligibility. It’s pre-approved by the Social Security Administration and the Texas Department of Health and Human Services. While government benefits cover things like housing and basic medical care, your trust funds can pay for nonessential medical supplies and services, eyeglasses, insurance premiums, diapers, travel, entertainment, and more. These things are called “supplemental needs.” The beneficiary and their support network determine how funds are used.
Home and Community-Based Services (HCBS) Medicaid waivers provide services and supports that help people with disabilities live and work in their community and avoid institutionalization. Click here for our guide on Medicaid Waivers: learn about the six types of waivers for people with disabilities, look up your place on the waitlists, or learn how to get on the waitlists. For example, people with a disability may be able to receive services through a Medicaid community-based waiver or through Community First Choice that support them and make guardianship unnecessary. All available formal and informal supports and services should be considered before deciding to pursue a guardianship.
- Advanced medical directives
- Medical power of attorney
- Durable power of attorney
- Use of a representative payee
- Establishing a joint bank account
- Management trust
- Money management programs
- And more (this list is not exhaustive)
Protections for People Under Guardianship
If you already have a guardian, you still have rights! Your guardian should allow you to have as many rights as possible. Tell your guardian you want your rights to choose where you live and work, get married, drive, vote, and make medical choices. Under the Bill of Rights for People with a Guardian (passed by the Texas Legislature in 2015 under Estates Code Section 1151.351), you have the rights listed below, unless a judge takes them away:
- Live, work, and play in the most integrated setting
- Visit with people of their choice
- Appear before the court to express their preferences and concerns
- Have access to a monthly personal allowance
- Receive timely and appropriate medical care
- Visits from the guardian at least once every three months
- And more
If You Are Considering Guardianship
In some situations, a family may decide that pursuing guardianship is the best option for them. In Texas, obtaining a guardianship requires hiring an attorney and going to court to determine the capacity of the person in question. Additionally, you will need your child’s physician to complete a certificate of medical examination (CME). For the CME, the physician answers specific questions about the person’s mental and physical capabilities and gives their professional opinion about whether the person has capacity to make her or his own decisions.
Families who choose to pursue guardianship can still take many important steps to protect the rights of their loved one. You can obtain a limited, or partial, guardianship, in which all rights are preserved except for those specifically taken away by the court. For example, under 2015 law, it is assumed that a person under guardianship can choose their own residence, unless a preponderance of evidence shows that the person lacks the capacity to make this choice. You can also protect many other important rights for your loved one, such as the right to marry, drive, vote, consent to medical care, and more.