Archive for the ‘Due Process’ Category

Texas Guardianship Bill Seeks to Close Current Due Process Loophole

April 26, 2013

Guardianships limit, even sometimes suspend, many basic rights enjoyed by Texas adults. HB 2600, currently before the legislature, seeks to revise how incapacitation for the purpose of pursuing a guardianship is determined. An analysis by the Texas Conservative Coalition (TCC) discusses this bill’s potential impact on all Texans including the administrative ease with which this rights-revoking status can be attained under Texas’ current Estate Code that includes “no provision for a hearing or due process.” It further notes courts not being required to consider evidence in probable cause determinations. Rather, the code lists two minor items that courts “may” consider.
The Texas Conservative Coalition says this of the bill introduced by Rep. Stephanie Klick, R-Fort Worth:

In most circumstances in which a court appoints a guardian under the Estate Code, the process is governed by Chapter 1101, which details numerous requirements in the application process. Most importantly, the proposed ward is entitled to a hearing, at which the court is required to inquire into the ability of persons to feed, clothe, and shelter themselves, care for their own physical health, and manage their own property or financial affairs. The proposed ward must also be present at the hearing, unless the court determines on the record that their appearance is not necessary. Most importantly, the proposed ward may request a jury trial on the determination of their mental capacity. Before appointing a guardian, the court must find by clear and convincing evidence that the proposed ward is incapacitated, that it is in the person’s best interest to have a guardian appointed, and that their rights and property will be protected.

The provisions in Chapter 1102 – which are addressed by HB 2600 – allow a court to circumvent the protections afforded to proposed wards in the typical process. As written, the chapter includes no provision for a hearing or due process. It does not even require a court to consider evidence when making its determination of probable cause. Rather, the code lists two minor items that the court “may” consider.

HB 2600 closes the current loophole by modifying Chapter 1102 and requiring due process for a proposed ward with a formal hearing wherein that person will be given the opportunity to prove their mental capacity. The United States Constitution prohibits deprivation of life, liberty, or property without due process of law. A person whom the court determines is incapacitated loses the right to make decisions on where and how to live and how to manage their property and finances. These are basic liberties that HB 2600 is intended to protect.

And nearly three hours of testimony Monday before a probate subcommitee of the House Committee on Judiciary & Civil Jurisprudence seemed to support this contention.

The divide between those for and against the bill was quickly evident and the testimony helped illustrate the potential power of this seemingly innocuous legislation.

A stream of witnesses told emotional guardianship horror stories alleging total disregard of any due process by the courts, denial of access to loved ones and expensive legal battles stemming from questionable court actions.

Meanwhile, lawyers and several judges testified against the bill including how the 30-day window for scheduling a hearing is too long, the affidavit requirement will deter some interested parties’ participation and this change will throw more cases to Adult Protective Services, an already over-taxed system.

HB 2600 comes down to requiring that courts “must” do some things to determine incapacitation for guardianship, things which now they “may” selectively do. Small words carrying big meanings.
The legal industry maintains the laws in place to protect potentially vulnerable Texans are followed. Many of these cases, however, don’t support that position. It’s unknown if HB 2600 would be the law to make a difference, but after watching people be denied individual liberties, property rights and access to families, supporters of the bill hope they won’t be denied the fighting chance HB 2600 might offer.

To date, HB 2600 is left pending with the subcommittee.

Full Article and Source:
Texas Guardianship Bill Seeks to Close Current Due Process Loophole