Guardianship of Elderly Texans Examined - Wentworth

Between the years 2000 and 2040, the number of Texans aged 65 and over is expected to increase from two million to seven million, representing 16 percent of the total Texas population.

In addition to Texas’ aging population, the 2006 American Community Survey conducted by the US Census found that approximately 15 percent of Texans had one or more disabilities. That number will increase as the population ages, placing even more demands on the Department of Aging and Disability Services (DADS) and Adult Protective Services (APS).

DADS is responsible for providing access to long-term services and support to Texans who are aging or disabled, while APS’s mission is to protect elderly and disabled adults from abuse, neglect and exploitation.

The Senate Committee on Jurisprudence, which I chair, recently heard testimony concerning the state’s guardianship program implemented by DADS and APS. The hearing was in response to Lt. Governor David Dewhurst’s interim charge, which asked the committee to study the efficiency and effectiveness of the guardianship program.

The program has been in the headlines lately as the result of various allegations by Texans, including claims of abuse or neglect within state-run facilities; improper revocation of guardianship status; mistaken determination of incapacity; abuse within the court system; and the mishandling of a ward’s estate.

One widely publicized case documented an elderly couple allegedly forced into state custody after an APS investigation led to a judge’s determination that they were incapacitated. As a result, the couple lost control of their home, their finances and, ultimately, their lives. This particular case illustrated an increasingly common claim made against the state guardianship program, that it lacks protection for the ward and the ward’s estate.

Under the current state guardianship program, APS is charged with investigating allegations of abuse, neglect and exploitation to determine if a public guardian is necessary. Should APS determine that a guardian is appropriate for the situation, APS may refer the case to the DADS guardianship program.

After the referral, APS assists DADS with the process by providing details of the ward’s assessment and serving as a resource during probate proceedings.

In the course of providing protective services to elderly and/or disabled Texans, APS may file emergency orders for protective services. These legal actions are presented to statutory probate courts or other courts with probate jurisdiction.

In Texas, guardians may be family members and friends, private professional guardians, private guardianship programs, county-operated guardianship programs and DADS guardianship program.

Guardianship responsibilities may include managing finances, making medical decisions and arranging for ward placement and personal care. In 2009, APS filed 453 referrals to DADS for guardianship. Currently, the DADS guardianship program is serving 1,213 Texans.

Since any abuse or injustice within the state guardianship program is unacceptable, this issue requires further examination by the Texas Legislature to ensure that elderly and disabled Texans are adequately protected.