Because guardianship takes away a person’s rights, the Texas courts will look for a less restrictive alternative before granting a guardianship. Less restrictive alternatives include the following:
Money Management
Volunteer money management programs offer a less restrictive alternative to guardianships for low-income elderly and adults with disabilities who are incapable of managing their checking accounts themselves and have no one else available or appropriate to assist them.
The Purpose of these programs is:
- to promote and prolong independent living for individuals who are at risk of losing their independence due to an inability to manage a checking account, and
- to prevent financial abuse, neglect and exploitation of those individuals.
This is accomplished through the use of volunteers who serve as:
- Bill Payers: provide budget set-up, checkbook balancing, bill paying assistance each month; or
- Representative Payees: provide budget set-up, checkbook balancing, bill paying assistance each month, have signature authority for government benefits and are designated by one of the followingfederal agencies to manage a client’s government benefits:
a. Social Security Administration,b. Veterans Administration,c. Railroad Retirement,d. Office of Personnel Management.
Insurance coverage for client’s funds, volunteers and agencies;
Criminal background checks on all volunteers and staff;
Monitoring of bank accounts
Monitoring of local programs
Technical assistance to local programs, and
Volunteer supervision and support.
This program is intended for those who have no other source of assistance. A volunteer money manager must sign a conflict of interest statement and does not make any decisions about or give advice regarding property or investments.
Power of Attorney
A Power of Attorney (POA) is an instrument executed by an adult who has capacity authorizing another person to act as his or her agent. The power to the agent may be either specific or general.
Durable Power of Attorney
If specifically stated in the document, the POA becomes a durable power of attorney and does not terminate upon the disability or incapacity of the principal. The durable POA also may be limited so that it takes effect only upon the principal’s disability. It must be signed by the principal and notarized, but does not need to be witnessed.
A durable POA terminates upon qualification of a guardian of the estate. A durable POA also may be terminated by the principal or may have date of expiration as provided in the document.
Durable Power of Attorney for Health Care
The durable power of attorney for health care is an instrument executed by an adult with capacity giving another person the authority to make health care decisions for him or her.
This power only takes effect upon written certification by a physician that the principal lacks capacity to make health care decisions. The physician’s certificate must be filed in the medical records of the patient.
The durable power of attorney for health care must be signed by the principal in the presence of two (2) disinterested witnesses. The witnesses must also sign the instrument.
The durable power of attorney for health care does not terminate upon qualification of a guardian unless so ordered by the court.
Directive to Physicians
The Directive to Physicians is a document that allows an adult with capacity to instruct physicians to withhold artificial means of extending the natural process of dying. To make a valid Directive to Physician, one must be:
at least eighteen (18) years old;
of sound mind; and
acting of his or her own free will
A Directive to Physicians need not be notarized but must be witnessed by two qualified persons. Two physicians must make a determination that the patient has a terminal condition and that the patient’s situation meets other statutory requirements before acting on the directive.
For further information on this option, contact the Texas Medical Association Board of Councilors in Austin.
Management of Community Property
If an individual is judicially declared incapacitated, the spouse may have the full authority to manage, control and dispose of the entire community estate without the necessity of a guardianship, if the court does not find the spouse to be disqualified.
The standards for disqualification are those which apply to guardians. The qualification of a guardian of the estate does not take away control from the competent spouse over the community property.
