valid ground for seeking a modification or termination of guardianship. If sufficient supports and services are available to a ward warranting the need to modify or terminate a guardianship, the ward or any interested person may submit an application to the court requesting that the guardianship be amended or terminated. Expanded Duties of the Attorney Ad Litem Section 1054.001 of Texas Estates Code expands the role of the attorney ad litem to require the ad litem to discuss with the proposed ward any alternatives to guardianship that may assist the ward in meeting their needs. Additionally, the ad litem is required to discuss with the proposed ward whether the ad litem believes guardianship is necessary, and if the ad litem does believe it is necessary, whether any powers or duties of the guardian should be limited. Physician’s Certificate Section 1101.103(b) of the Texas Estates Code expands the physician’s evaluation of a proposed ward to include: 1) an assessment of whether supports and services available to the proposed ward could mitigate the need for guardianship; and (2) an assessment of whether it is possible for the ward’s condition to improve, and if so, the time period in which the proposed ward should be reevaluated to determine whether guardianship continues to be necessary. In amended Section 1101.153, the legislature provided that if the physician determines that a reevaluation of the proposed ward is appropriate, the court order must include the date by which the guardian must submit an updated physician’s letter or certificate to the court. Application Contents and Court Findings Texas Estates Code Section 1101.101 was expanded to provide that an application for guardianship must address: (1) which, if any, alternatives to guardian-
ship were considered prior to filing the application; (2) which, if any, supports and services are available to the ward; and (3) if any available supports and services would avoid the need for guardianship. Upon hearing the application, the Court must determine by clear and convincing evidence that all alternatives to guardianship, as well as all supports and services available to the proposed ward, were considered and deemed not feasible.
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ity to make personal decisions regarding their residence. More Restrictive Care Facility Texas Estates Code Section 1151.051 was amended to expand the duties of a guardian seeking to move a ward to a more restrictive facility. A guardian who has the authority to determine a ward’s residence must notify the court, the ward, and any other individual that has requested notice of any plans to move the ward to a more restrictive care facility. Once notice has been received, the ward or another individual has eight business days to object to the new placement. If an objection is received, the court will hold a hearing to determine the ward’s placement. If no objection is received, and the court has not scheduled a hearing on its own motion, the ward may be moved into the proposed placement.
The major changes made to the law focus predominantly on defining and advocating for alternatives to guardianship proceedings...
Bill of Rights for Wards Section 1151.351 establishes a bill of rights for every ward subject to guardianship. Generally speaking, each ward is entitled to the rights, benefits, responsibilities and privileges granted by the constitution and laws of Texas and the United States, unless otherwise restricted by court order. This section lists a number of specific rights that each practitioner in this area of law should read as well as provide to any court-appointed guardian.
Ward’s Right to Determine Residence For all limited guardianships, it is presumed that wards retain their right to determine their own residence. Consequently, Section 1101.001(b) was amended to require practitioners assisting a guardian to determine if wards are capable of determining their own residence, and if they are not, then to specifically state this fact in the application for guardianship. Additionally, Sections 1101.101(c) and 1101.152(a)-(b) were expanded to require that the court order admitting wards to guardianship state specifically whether a ward lacks capac-
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Visitation and Communication with Ward and about the Ward Texas Estates Code Section 1151.055 was added to provide that if a guardian prevents a family member, including a spouse, child, sibling, or parent of a ward, from visiting or communicating with a ward, the family member may apply to the court for an order permitting them to visit or communicate with the ward. This section also permits attorney’s fees and court costs to be awarded to the prevailing party. Similarly, newly added Texas Estates Code Section 1151.056 obligates a guardian to inform family members if the ward: (1) dies; (2) is admitted to a medical facility for more than three days; (3) changes residences; or (4) stays
thehoustonlawyer.com
September/October 2015
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