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HB 39 would amend the Estates Code to provide alternatives to appointing a guardian for an incapacitated person. The amended code would require an attorney to explore to the greatest extent possible about alternatives to guardianship. If guardianship is needed, specific powers or duties of the guardian would be limited. If guardianship is necessary, the attorney must certify to the court that it is necessary. Alternatives to guardianship include the execution of a medical power of attorney, appointment of an attorney in fact or agent under a durable power of attorney, execution of a declaration for mental health treatment, appointment of a representative payee to manage public benefits, establishment of a joint bank account, creation of a management trust, creation of a special needs trust, designation of a guardian before the need arises, and establishment of alternate forms of decision-making based on person-centered planning.
An attorney applicant for guardianship would be required to complete four hours, instead of three hours, including one hour on proposed alternatives to guardianship. The applicant must also include in the sworn application that alternatives to guardianship were considered and if they are feasible to the proposed ward.
The physician certification would be required to include a statement on whether improvement in the proposed ward's physical and mental condition is possible and if so, state when the proposed ward should be reevaluated to determine if continued guardianship is necessary.
HB 39 would also amend code to allow a guardian to make decisions regarding the proposed ward's residence if the ward is found to be totally incapacitated. If the ward has limited powers, the amended code would allow the code to appoint a guardian with limited powers and allow the ward to make personal decisions regarding his or her residence. The court would also be required to give consideration to the ward's preference for a guardian.
Additional provisions in the amended code would give full preference to achieving the aims of the bill to help proposed wards retain as much rights as possible and explore alternatives to guardianship.
The Senate committee substitute would add an additional section that provides for supported-decision making that recognizes a less
restrictive substitute for guardianship for adults with disabilities who need
assistance with decisions regarding daily living but who are not considered
incapacitated persons for purposes of establishing a guardianship.
05/08/2015 We still support this legislation in the second chamber.
This bill would promote the principle of personal responsibility, therefore we support this legislation. By adding in requirements by law that all alternatives to appointing a guardian of a physically or mentally incapacitated person have been explored, this would help protect the rights of the incapacitated individual. Essentially, HB 39 would promote the rights of individuals who suffer from an incapacitating condition and help protect them from the unnecessary control of another over their lives.