Guardianship

A guardian is someone appointed by a court who is responsible for the personal affairs of an incapacitated person, called a ‘ward,” and making decisions for that ward. Guardianship may be awarded to make only limited decisions, such as educational decisions only, or medical decisions only, or it may be a full guardianship covering all personal affairs. A judge determines whether you have a physical or mental condition that prevents you from making decisions or taking care of yourself. Guardianship limits your freedom of choice, self-determination, decision-making, and independence. Guardianship can be an expensive process and very hard to reverse. A guardian may be appointed at any time once you turn 18. The guardian may be your parent(s) or someone else. Guardians have reporting and training responsibilities especially when there is an estate. Over time, the individual who serves as your guardian may be changed with the approval of the court. If your ability to care for yourself and make decisions later improve, the guardianship might even be ended and removed. Even while you have a guardian, you can keep the right to make some of your own decisions.

A guardian has the following rights, duties, and authorities:

the right to make educational decisions
the right to have physical possession of you and to determine where you live;
the duty to provide care, supervision, and protection, and to provide you with clothing, food, medical care, and shelter
the authority to consent to medical, psychiatric, and surgical treatment for you (this does not include
the authority to commit you to an inpatient psychiatric facility);
the authority to oversee a financial trust for you; and
the authority to sign documents necessary or appropriate to facilitate your employment.

When managing your estate, a guardian also has the following authorities:

to possess and manage your property;
to collect all debts, rentals, or claims that are due to you;
to enforce all obligations in favor of you; to bring and defend suits by or against you; and
to access your digital access.

A judge may also agree to limited guardianship where you make some decisions. Limited guardianship may include financial or medical decision-making, but still allow you to vote, get married and decide where you live. Your guardian would make healthcare and financial decisions for you.

Alternatives to Guardianship

Because guardianship is restrictive, entities have acted to provide alternatives to guardianship for some adults with disabilities. Some of these alternatives are explained below.

Durable Power of Attorney: A durable power of attorney gives someone the ability to act on your behalf. A durable power of attorney limits what your representative may do. For example, durable power of attorney may be in place to allow your parent(s) to make only educational decisions for you. In this case, your parent(s) would not be able to make medical or financial decisions for your because the durable power of attorney, in this case, is limited to education. This sort of arrangement gives you, as an adult student, autonomy over the other elements of your life.

Special Needs Trust: Another option is a special needs trust. This type of trust allows you, as someone with a disability, to have funds available for certain expenses while protecting your eligibility for public benefits and access to care and services. Always contact an expert in special needs trust and estate planning before you open a trust.

Representative Payee: A representative payee, or substitute payee, is a person who acts as the receiver of United States Social Security Disability or Supplemental Security Income for a person who is not fully capable of managing their own benefits, i.e.,, cannot be their own payee . The representative payee is expected to assist the person with money management, along with providing protection from financial abuse and victimization.

Achieving a Better Life Experience (ABLE) Act: This Act amends Section 529 of the Internal Revenue Service Code of 1986 to create tax-advantaged savings accounts for individuals with disabilities. These tax-advantaged savings accounts can be used to cover qualified disability expenses such as, but not limited to, education, housing, and transportation.

There are also formal and informal services and supports that enable individuals to help adult students with disabilities meet their needs for food, clothing, or shelter; to care for their physical or mental health; to manage their financial affairs; and to make personal decisions regarding residence, voting, operating a motor vehicle, and marriage. One or more of these services and supports may be helpful for you.

Independent Living

Adult students with disabilities want to live independent lives. You want to set their own life goals and work toward reaching those goals. There are numerous resources available to help adult students live lives of independence. The foundation of many of these resources is the Developmental Disabilities Assistance and Bill of Rights Act (DD Act).

The DD Act speaks to “self-determination activities.” It explains that these are “activities that result in individuals with developmental disabilities, with appropriate assistance . . . to advocate for themselves and others, to develop leadership skills, through training in self-advocacy, to participate in coalitions, to educate policymakers, and to play a role in the development of public policies that affect individuals with developmental disabilities.”

Becoming independent, or self-determined, as an adult begins early. To facilitate independent living, transition requirements for students with disabilities must begin no later than when he or she turns age 14. Additional transition requirements take effect by the time the student turns age 16. These transition requirements are meant to assist students in preparing for success after high school.

Supported Decision-Making

Texas Education Code §29.017 requires that school districts provide students with disabilities and their parents with information on, among other things, alternatives to guardianship, including supported decision making agreements under Chapter 1357 of the Texas Estates Code . The school district must provide this information not later than one year before a student turns 18.

To understand what a supported decision-making agreement is and who may enter into such an agreement, the Texas Estates Code provides the following definitions:

“Adult” is an individual 18 years of age or older or an individual under 18 years of age who has had the disabilities of minority removed.
“Disability” concerning an individual is a physical or mental impairment that substantially limits one or more major life activities.
“Supported decision-making” is a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions without impeding his/her self-determination, including.
- Decisions related to where the adult wants to live, services, support, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work.
“Supported decision-making agreement” is an agreement between an adult with a disability and a supporter.
“Supporter” is an adult who has entered into a supported-decision-making agreement with an adult with a disability.

State law also provides additional information about supported decision-making agreements. The following information is also from the Texas Estates Code.

Supported decision-making agreements support and accommodate an individual with a disability to make life decisions. These decisions include where the individual wants to live, the services, supports, and medical care the individuals want to receive, whom the individual wants to live with, and where the individual wants to work, without interfering with the self-determination of the individual with a disability. A supported decision-making agreement allows an adult with a disability to voluntarily, without unnecessary influence or force, enter into a supported decision-making agreement with a supporter under which the adult with a disability approves the supporter to:

Assist in understanding the options, responsibilities, and consequences of the adult’s life decisions, without making those decisions on behalf of the adult with a disability;
Assist in accessing, collecting, and obtaining information that is relevant to a given life decision, including medical, psychological, financial, educational, or treatment records, from any person; assist in understanding the information described in the above bullet; and
Assist in communicating the adult’s decisions to appropriate persons.

Once an adult with a disability and a supporter enter into a supported decision-making agreement, it will remain in effect until either party ends it, or when the terms of the agreement specify that it will end. Also, the agreement will no longer be in effect if the Department of Family and Protective Services finds that the adult with a disability has been abused, neglected, or exploited by the supporter, or the supporter is found criminally liable for abusing, neglecting, or exploiting the adult with a disability.

Regarding access to that adult’s personal information, the supporter is limited to assisting the adult with a disability in accessing, collecting, and obtaining relevant information. The supporter must ensure that private information is kept confidential and that it is not inappropriately accessed, used or disclosed.

An adult with a disability cannot be forced into entering into a supported decision-making agreement. Both the adult with a disability and the supporter must sign the agreement voluntarily. They must sign it in the presence of two or more subscribing witnesses who are at least 14 years old, or they may sign it before a notary public.

For a supported decision-making agreement to be valid, it must be in a form substantially similar to the following:

SUPPORTED DECISION-MAKING AGREEMENT EXAMPLE

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In This Section

Guardianship

Alternatives to Guardianship

Independent Living

Supported Decision-Making

Resources

Guardianship Resources

Alternative Guardianship

Independent Living

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