IMPACT OF TEXAS GUARDIANSHIP REFORMS ON TRANSITION PLANNING Richard LaVallo Steven Aleman Disability...

IMPACT OF TEXAS GUARDIANSHIP REFORMS ON

TRANSITION PLANNING

Richard LaValloSteven Aleman

Disability Rights Texas

WHY ARE WE HERE?

Over 50% of guardianships in Texas are created when the ward turns 18 years of age.

WHY NOT GUARDIANSHIP?

What Does Guardianship Do?•Requires a court order to establish and ongoing court oversight. •Removes the person’s freedom of choice, self-determination and

independence.•Removes some or all of a person’s decision-making rights.•Assigns decision-making to a third party (the guardian).

What Does Guardianship Do?•Expensive – attorney fees and court costs; bond•May be difficult to terminate or modify.•Annual accounting and reports on the condition of the ward.

Why Families May Seek Guardianship•Child reaches 18 years of age•School or physician tells them it is necessary.•Think it is necessary for school, health care or other decisions after age 18.•Help their child handle money.•Connect their child with adult services.•May believe this is the only legal solution.

Important Things to Remember•The law presumes all adults have the capacity for decision-making

– this applies to everyone, including people with disabilities.•Decision-making is a learned skill – people with disabilities need

opportunity, experience and support to learn to make well informed decisions.•There are other legal ways to assist people with decision-making

that do not restrict, limit or remove individual rights.

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Reforming Guardianship in TexasThe 84th Legislature passed four bills protecting the rights of persons with disabilities in the guardianship system:

1) HB 39 – Alternatives to Guardianship;

2) SB 1881 – Supported Decision-Making;

3) SB 1882 – Bill of Rights of Wards; and

4) HB 1438 (Section 10) – Court-Initiated Guardianships[Note: All references are to the Estates Code and not the Bill provisions.]

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Effective Date for Guardianship Reforms

September 1, 2015

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Significant Changes•For the first time, the Texas legislature mandated that probate courts consider alternatives to guardianships and supports and services before a guardianship is created.

•Texas became the first state in the nation to place supported decision-making into statute as an alternative to guardianship.

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ALTERNATIVES TO GUARDIANSHIP

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Alternatives to Guardianship:Texas Estates CodeAlternatives to guardianship include:1) Medical Power of Attorney;2) Durable Power of Attorney; 3) Declaration for Mental Health Treatment;4) Representative Payee;5) Joint Bank Account;

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Alternatives to Guardianship6) Management Trust;

7) Special Needs Trust;

8) Designation of Guardian Before the Need Arises;

9) Alternate Forms of Decision-Making Based on Person-Centered Planning; and

10)Supported Decision Making Agreement.

Tex. Est. Code §§ 1002.0015 & 1357.001 et seq.

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Supports and Services:Now Defined in Estates Code“Supports and Services” –means available formal and informal resources and assistance that enable an individual to:

1) Meet the individual’s needs for food, clothing, or shelter;

2) Care for the individual’s physical or mental health;

3) Manage the individual’s financial affairs; or

4) Make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.

Tex. Est. Code § 1002.031

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Common Supports and Services1) Supportive and Trusted Individuals, Family Members and Friends –

Support and assist with explaining potential benefits and risks when making decisions about everyday issues like money management, cooking, hygiene, health care, safety, and relationships.

2) Community-Based Medicaid Waiver Programs – Assist with supports to ensure that medical and personal needs are addressed.

3) Case Management Services – Coordinate services with goal of individual with disability being as self-sufficient as possible.

4) Person Centered Planning – Process of planning with and supporting an individual that honors the individual’s preferences, choices and abilities.

5) Free or Reduced Price Meals, Foods and Prescription Delivery

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Common Supports and Services6) Free or Reduced Price Transportation – Taxi vouchers, van services and

public transit for appointments when mobility and safety are concerns.

7) Daily Call or Home Visit Services – Volunteer making daily calls to individual, get help if needed, and provide social contact.

8) Utility Companies – Notify third party if individual does not pay on time.

9) Technology – Devices such as smart phones and tablets to help individual become and remain independent (e.g. use pictures and verbal instructions, timers to remind when to take medication, turn off stove and lock the door.)

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Common Supports and Services10) Credit Union and Banking Services – Provide services for individuals that

may need assistance with money management. Some options are:• Direct Deposits & Payments: Individual’s regular income or government benefits (e.g. SSI)

could be directly deposited into an account and regular payments for rent, utilities etc. can be made from the account.

• Joint Accounts: Refer to an account where at least two people have access to the funds either to make a deposit or withdrawal. Cosigner account requires both people to sign documents in order to authorize withdrawals.

11) Debit Cards – Refers to reloadable card that can be used as a money management tool to help individual adhere to a budget.

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SUPPORTED DECISION-MAKING

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The Supported Decision-Making Agreement Act – We’re Number One!

Texas is the first state to recognize supported decision-making as a substitute for guardianship.

Tex. Est. Code § 1357.001 et seq.

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What is Supported Decision-Making?It is defined in statute as:

“A process of supporting and accommodating an adult with a disability to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult.”Tex. Est. Code § 1357.002(3)

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Who Can Enter a Supported Decision-Making Agreement? •Any individual over 18 who has a physical or mental impairment

that substantially limits one or more major life activity. Tex. Est. Code § 1357.002(1) & (2)•A level of capacity a person must have in order to enter a supported

decision-making agreement is not defined, but a person must have sufficient capacity to agree to the supporter assisting him or her in making particular decisions.

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Who Can Be the Supporter? Any Adult• The law does not place any restrictions on who may

become a supporter. • The person who needs the support decides on someone

they trust.• Typically, the supporter may be a family member,

relative or friend.Tex. Est. Code § 1357.002(5)

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Is this Voluntary or Court Ordered?•An adult with a disability decides they need supports with decisions.

•The person with a disability and supporter enter into the agreement voluntarily, just like a power of attorney.

• It is informal and does not require going to court.


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How is it Different from a Power of Attorney? •A supported decision-making agreement is distinct from a power of attorney

because it does not allow a person to make the decisions for a person.

• In a supported decision-making agreement, the person with a disability retains the right to make decisions.

• Chief Justice Hecht described supported decision-making agreements as “Power of Attorney Lite.”


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What Can a Supporter Do? A supporter may do any or all of the following:

1) Assist adult with a disability in understanding options, responsibilities and consequences of life decisions;

2) Assist adult with a disability in accessing, collecting and obtaining medical, psychological, financial, educational and treatment records;

3) Assist adult with a disability in understanding information in (2); and

4) Assist adult with a disability in communicating his or her decision to appropriate persons.


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What About Confidential Information?• A supporter is only authorized to assist adult with a disability to access, collect or

obtain information.

• This includes protected health information under HIPAA and education records under FERPA.

• A supporter shall ensure that information is kept privileged and confidential and is not subject to unauthorized access, use or disclosure.

• A supported decision-making agreement does not prevent an adult with a disability from seeking personal information on his or her own without the assistance of the supporter.


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Can a Supported Decision-Making Agreement Be Used Along With Other Alternatives to Guardianships?•Yes, a supported decision making agreement can be used in

conjunction with other alternatives to guardianships such as a medical power of attorney or representative payee.•This is consistent with the goal of supported decision-making to

promote the self-determination of persons with disabilities and to avoid guardianships.

TRANSITION PLANNING

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Quick Refresher on Transition Planning Requirements for Students with Disabilities• TEA regulation on IEPs governs transition planning as follows:• For students with autism, the student’s IEP must include futures planning for integrated

living, work, community, and educational environments – beginning at any age when needed.

19 Tex. Admin Code § 89.1055(e)

• For all students with disabilities, the IEP must include, among other things: 1) appropriate student involvement in the student’s transition to life outside the public school system; 2) independent living goals and objectives; and 3) appropriate measurable postsecondary goals related to independent living skills.

19 Tex. Admin. Code § 89.1055(h) & (i)

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Quick Refresher on Transition Planning Requirements for Students with Disabilities•Federal regulations define “transition services”:

1) a coordinated set of activities for a child with a disability that is, among other things, focused on improving functional achievement to facilitate movement toward independent living; and

2) may be special education, if provided as specially designed instruction, or a related service, if required to assist a child with a disability to benefit from special education.

34 C.F.R. § 300.43

HOW CAN THE GUARDIANSHIP REFORMS BE ADDRESSED IN

TRANSITION PLANNING?

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Opportunities in Transition Planning to Help Prepare Students for Guardianship Alternatives and Supported Decision-Making Agreements

•Before beginning transition planning, all ARD Committee members should be trained on the alternatives to guardianship and supports and services that could be used to avoid the need for a guardianship.•ARD Committees should provide the student and parents with

information about alternatives to guardianship and supports and services.

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•A goal of transition planning should be to prepare the student to develop his or her self-determination and independence by using alternatives to guardianship and supports and services to avoid the need for a guardianship.

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•Early in the transition planning process, ARD Committees should consider resources, tools, and programs that would assist the student and parents be prepared for transition planning.• For example, “Whose Future Is It?” is a packaged curriculum to introduce

adolescents to the transition process.

•ARD Committees should request that the district transition designee assist the student with experiences and opportunities in problem solving, making choices, and understanding options.

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• Throughout the transition planning process, ARD Committees should include the student and increase his or her participation over time.• State on deliberations page the specific role and input provided by the student

during ARD meeting – if you measure and record it, it will happen.

• Specific transition goals should be considered to promote the development and growth towards independence, decision-making, and self-determination.• For example, basic transition goal of expression of preferences might be the

starting point.

• Objective is to prepare and equip every student to exercise as much decision-making and self-determination as possible.

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•As part of the transition planning process, ARD Committees should consider the building blocks of skills, experience, and confidence that will enable the student at age 18 to be in the best position possible to avoid guardianship.• Little steps lead to giant leaps in progress.

•ARD Committee should address areas such as interpersonal skills, communication, and organization as the starting point as necessary.• Based on individualized evaluation and assessment data.

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•ARD Committees should introduce tools and methods to discover information that identifies what is important to a student and what is important for a student.•Person-centered planning can assist students with disabilities to

have positive control over their lives.•Resources such as the Institute for Person-Centered Practices are

available with more information to help the ARD Committee.• http://www.person-centered-practices.org/home.html

http://www.person-centered-practices.org/home.html

http://www.person-centered-practices.org/home.html

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•ARD Committees should be aware of and consider the supports and services that will enable the student with a disability to avoid the need to have a guardian.•Persons knowledgeable about supports and services should be

invited to the transition planning meeting.•Social work services should be provided as a related service to

assist a student gain access to supports and services.34 C.F.R. § 300.34

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•Resources such as the most recent edition of the Texas Transition and Employment Guide provide an overview of “supports and services.”• www.transitionintexas.org/transitionintexas

•ARD Committees should be aware of and inform the student and parents that Medicaid waiver programs such as the home and community services (HCS) waiver program can take years to obtain. Therefore, it is necessary for the student to apply for waiver services as early as possible.

http://www.transitionintexas.org/transitionintexas

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•The “pre-employment transition services” mandated by the federal Workforce Innovation and Opportunity Act in 2014 could be used to assist a student to avoid the necessity of guardianship.•Pre-employment transition services are available through DARS.• The student with a disability is not required to be a client or consumer of

DARS to obtain pre-employment transition services.

•One of the pre-employment transition services is “instruction in self-advocacy”.

29 U.S.C. § 733

WHAT ABOUT THE TRANSFER OF RIGHTS AT THE AGE OF

MAJORITY?

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Quick Refresher on Texas Transfer of Rights Requirements for Students with Disabilities•TEA rules require that ARD Committees provide notice twice to

the student with a disability about the transfer of parental rights upon the student’s 18th birthday – first at least a year beforehand and then at the time of the student’s 18th birthday. The student must be informed that these rights will transfer unless a guardian is appointed to make educational decisions for the student.•Under the TEA rules, the use of an educational power of attorney

is not prohibited.19 Tex. Admin. Code § 89.1049

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Opportunities to Ensure Transfer of Rights to Adult Students•ARD Committees should understand and inform the student and

parents that options such as a supported decision-making agreement and an educational power of attorney could be used to assist a student in making educational decisions without the need for a guardianship. •With the adoption of supported decision-making agreements and

other alternatives to guardianship, a student will be able to make educational decisions with support after the IDEA rights are transferred to him or her.

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Opportunities to Ensure Transfer of Rights to Adult Students•Hence, the transfer of rights notice must include information about

the guardianship alternatives, supported decision-making agreements and educational powers of attorney.•Without such notice, the student would be deprived of the opportunity

to exercise his or her IDEA rights with support and assistance from a trusted family member or friend.

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Resources• National Resource Center for Supported Decision-Making

www.supporteddecisionmaking.org• Disability Rights Texas

www.drtx.org• Texas Council for Developmental Disabilities

http://tcdd.texas.gov/

http://www.supporteddecisionmaking.org/

http://www.drtx.org/



IMPACT OF TEXAS GUARDIANSHIP REFORMS ON TRANSITION PLANNING Richard LaVallo Steven Aleman Disability...

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