Guardianship Case Hailed as Victory for Adults With Disabilities

Guardianship cases involve many different family dynamics. At the end of the day, however, the ultimate goal is to protect vulnerable persons and place them in the best possible care. A recent case in Virgina attracted attention because the court ruled in favor of a 29 year-old woman with Down syndrome, against the wishes of her mother.

The disabled woman had lived with a couple she considered to be friends. The couple afforded her the freedom to live an independent life. However, her mother and step-father recently removed her from her friends’ home, forcing her to live in various group homes. The young woman testified that her freedoms were taken away inside those homes. She was not allowed access to her cell phone or computer, among other essential elements of an independent life. However, the mother and step-father had temporary guardianship of the young woman. They legally were allowed to make decisions about her living arrangements.

The judge agreed that the disabled woman needed a guardian, however he said he was forced to take the woman’s wishes into account. Therefore, the judge granted temporary guardianship to the two friends who had allowed the young woman to live with them. Emphasizing her feelings, the young woman was quoted as saying, “I’m so happy to be going home today.”

Advocates for adults with disabilities applauded the judge’s decision.

Establishing guardianship can be necessary under a variety of circumstances. It can be also be a complicated process with weighty consequences for all parties involved. In fact, Texas has a entire body of law specifically for Guardianships. Ford+Bergner provides comprehensive services to our clients to help walk them through the process every step of the way. Contact us for a free consultation about your guardianship case.

When Guardianship Goes Awry- Ensuring Compassionate Care for Elders

Establishing Guardianship for an older person who becomes incapacitated mentally and physically is often a challenging, emotional circumstance for relatives. When Mineral Wells, Texas resident Denise Tighe began to experience these issues friends and family took the steps to establish guardianship for her through the court. When it was determined that no friends or family could provide the care she needed an attorney was appointed to protect her assets, and the Department of Aging and Disability Services (DADS) was assigned to protect her personal welfare. Then, according to CBS Investigators, is when things began to unravel for Mrs. Tighe and those who care about her well being.

Formerly a Wall Street bank manager, Mrs. Tighe and her now-deceased husband had amassed an estate of high-end collectibles, jewelry, furnishings, and property- all of which was liquidated by the guardian of her estate. Even her cat, Bobby, was placed in a boarding clinic and then ordered by the attorney-guardian to be euthaniOKzed. Relatives and friends were told that they were no longer permitted to see Mrs. Tighe at her new assisted-living placement without first being on an approved list- the state said that “visitors are screened to protect her privacy and to prevent someone from taking advantage of her”.

Mrs. Tighe’s friends are saddened that their friend was taken from the community and moved to Weatherford, and further by the lack of visitation time permitted with someone they had grown to know and love. Suzanne Foley, sister of Mrs. Tighe, has been told she is no longer allowed to visit at will and was sent a letter stating that any future visits “must be pre-approved, arranged in advance and supervised”.  All who are involved are saddened to lose contact with someone that they love and feel that there has been no compassion or consideration for Mrs. Tighe.

Well-meaning judges and legal advisors often make decisions involving Guardianship for elders that lead to unnecessary or overzealous restrictions. Family members and friends should have the ability to offer support during a transition and the opportunity for continuing interaction after guardianship is established. Contact us if you have questions about court-appointed guardianship or estate planning options.

Dallas Commissioners Continue to Fail Dallas Probate Courts

A couple of years ago, we wrote about the Dallas County Commissioners’ Court’s failure to adequately fund the Dallas Probate Courts.  We pointed out that some of these courts do not even have the ability to send a fax, make a long-distance phone call, or have a copier in the court offices when the Probate Courts in other counties have offices that are fully-equipped to function in the modern-era with copiers, fax machines, scanners, long-distance, etc.

Since that last blog post, not much has changed in Dallas County.  The Commissioners’ Court continues to under-fund the Probate Courts.  The most recent example of this problem came to light recently as we were working on a simple, uncontested guardianship where an adult son was trying to become his father’s guardian because of the father’s increasing alzheimer’s.

Under the Texas Government Code, every statutory Probate Court in the state is required, by law, to have a court investigator.  The Court Investigator’s role is to go out and investigate each potential guardianship case and to make a recommendation to the Court as to whether it appears that there needs to be a guardianship created.  The Court Investigator’s investigation and report is the very first step in a guardianship case, and until they have performed their duties, the case cannot proceed.  Delaying the investigation often means delaying the ability to appoint someone to look out after the interests of an incapacitated elderly adult who cannot care for themselves any longer.  The overwhelming majority of these cases deal with guardians for the elderly.

Over the last few months, 2 of the Dallas Court Investigators have quit, and because the Dallas Commissions have instituted a hiring freeze, the Probate Courts have not been able to replace these two positions.  As a result, the 3 Probate Courts have been sharing one Investigator for several months now, resulting in incredible delays in creating guardianships.  While the normal investigation should take no more than 10 days, we have been waiting 4 months for the Investigator to do the investigation in our case.

Because the Legislature placed such a high importance on the role of the Court Investigator, the Government Code requires that the County hire these individuals, even if there is a hiring freeze in place.  The County must fill these positions, but the Dallas Commissioners refuse to authorize the funds to hire them for Dallas County – in violation of very clear best interests of the citizens of Dallas County.

Every citizen of Dallas County should be completely outraged at the Commissioners’ inaction.  Their failure to fill these critical court investigator positions has put the elderly incapacitated individuals in Dallas at risk of abuse and/or neglect.

The Houston Chronicle Is At It Again

On Friday, November 4, 2011, the Houston Chronicle ran a front-page story entitled, “Elderly Texans at Risk, and It’s Legal,” which is the latest in a series of articles over the last few years regarding the Chronicle‘s perceived deficiencies in the way that guardianship cases are handled by the Probate Courts in Texas.  You may recall that we reported on a similar story from October 22, 2010, and prior stories were published in the Chronicle in June 2007.

The new article depicts the story of Helen Hale, an 86-year old widow who was “plucked” from her house and placed into a retirement home, but the article glosses over the fact that Hale’s children were neglecting to provide appropriate care for her.  The article cites that over 30,000 elderly people in Texas have “lost the right to decide where they live, to choose a caretaker or to spend their life savings…” due to becoming incapacitated in their later years.  The article also cites that the number of guardianship cases in the larger counties like Harris, Travis, and Bexar has increased to the point that each probate judge handles a caseload of between 1,500 and 3,000 guardianships per court, but it fails to cite that these counties have special courts dedicated to handling guardianship cases.  Most interestingly, the article casts a negative light on these courts because “most [probate] judges have only a single investigator to check out potential problems” in guardianship cases.

Although the Chronicle appears to tell a compelling story of neglect in the Probate Courts, the story clearly fails to convey the facts about guardianships accurately.  The article faults the probate courts for having only one investigator per court, but it fails to mention that only the 10 largest counties in the State with special courts dedicated to handling guardianship cases have court investigators to investigate problems in guardianship cases.  In the 224 other counties in the state, no court investigator exists in the entire county, which means that the vast number of counties in the state have nobody to investigate guardianship issues.

Likewise, in the 10 largest counties that have special judges dedicated to hearing nothing but probate and guardianship cases, the Courts have investigators and auditors to closely monitor what happens in guardianship cases.  The 224 other counties in the state have judges who do not “specialize” in guardianship cases, and in many cases, those judges are not even lawyers.  Instead, the courts in the 224 smaller counties hear a wide variety of cases – civil, criminal, family, guardianship, etc. – and do not offer incapacitated individuals the same level of attention that they receive in the larger counties.

The Chronicle is correct that the number of guardianship cases has exploded in the last 20 years because of the aging population in Texas.  The Chronicle also correctly cites one of the Probate Judges in Houston when she says that guardianship disputes are “the most expensive endeavors that I see in probate courts.”  Guardianship disputes are incredibly complex, and they are often made more complex by attorneys who do not routinely practice in this area and who do not fully understand the complexities of these cases before they get involved.

In reality, no system is perfect, and every system is going to have flaws.  However, the Probate Courts in Harris County take the greatest care of any Courts in the state in attempting to protect the interests of the elderly in Houston.  If you find that you need to pursue a guardianship over a family member, please contact Ford + Mathiason.  Our attorneys have very substantial experience in contested guardianship cases, and we would be glad to assist you.

Self-Neglect: The Overlooked form of Elder Abuse

As Elder Abuse month comes to a close, the Houston Chronicle recently ran an article about the lesser-known and often overlooked form of elder abuse, self-neglect. While it is difficult enough for elders to report abuse from family, friends, or caretakers, self-neglect reporting must come from a different source altogether. An elder individual neglecting him or herself is never going to be able to report it, so it is up to friends, neighbors and loved ones to take up that responsibility. This is not a rare occurrence or a responsibility to be taken lightly, however, as over 60 percent of the 1,500 cases handled by Adult Protective Services each month involve elderly individuals who cannot properly care for themselves.

It is easy to shrug off the eccentric or erratic behavior of elderly individuals as simply the typical behavior of someone their age. Sadly, though, in far too many cases it can be much more serious. External signs such as excessive clutter or letting their homes fall into disrepair are some of the common signs that elderly individuals are neglecting themselves. Sometimes the signs of self-neglect not as easily observable, though. Often times an individual may not be eating enough, or getting a balanced diet. They may be forgetting to take their medications, or accidentally taking the wrong doses. The only way this can be observed and reported is if those close to them take the time to educate themselves and take on the responsibility of knowing how to care for their loved one.

This type of elder abuse poses significant danger to the elderly, and only promises to get worse as we see the baby boomers aging. Take the time to learn about the medications your neighbors or family members are on. If you suspect a friend or loved one is a victim of self-neglect do not be afraid to make an honest assessment of the situation. If you believe that someone is incapable of caring for herself, you not only have a duty under the law to report it, but more importantly you owe it to her for her own safety and well-being.

May is Elder Abuse Prevention Month

May is Elder Abuse Prevention Month and in light of this the Disability and Elder Law Attorney’s Association welcomed Harris County District Attorney Pat Lykos as its keynote speaker this month. Judge Lykos was joined by Kate Dolan, Assistant District Attorney in charge of the Elder Abuse Division.

The speech focused on the common causes of Elder Abuse, the most frequent offenders, and the reason that a majority of these crimes go unreported. Not surprisingly the common theme in most of these cases involves family members seeking money from elderly parents or grandparents. However such crimes are not limited to monetary exploitation and can include physical, psychological, and sexual abuse. Unfortunately a vast majority of these crimes go unreported because of the strong emotional bond between elderly victims and the abusive family member and/or the embarrassment that naturally stems from being a victim of such abuse.

The presentation wrapped up with a rundown of the reporting guidelines which are listed in the Human Resources Code Section 48.051. Such section states that a person having cause to believe that an elderly or disabled person is being abused, neglected, or exploited, shall report the information immediately to the authorities. Such duty applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, and mental health professional.

The report may be made orally or in writing and needs to include not only the name, age, and address of the elderly or disabled person but also the name and address of any person responsible for that person’s care; the nature and extent of the person’s condition; the basis of the reporter’s knowledge; and any other relevant information.

Such reports can be made to the police by dialing 911, Adult Protective Services (APS), Department of Aging and Disablity Services (DADS); or the County Attorney’s Office Protective Division, by calling Celilia Longoria at 713-578-2181.

Please help do your part to prevent this rapidly increasing problem. If you suspect that an elderly or disabled person is the victim of abuse, please contact one of the departments listed above or give us a call at 713-260-3926.