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St. Mary's Law Journal

Abstract

The Texas system leaves the elderly and disabled vulnerable to financial vultures. Despite guardianship and pre-planning processes meant to empower elderly and disabled Texans to choose who shall manage their affairs, the Texas system may give a financial vulture access to the elderly or disabled’s accounts. Texas agencies such as Adult Protective Services’ purpose is to stop the abuse of the elderly, however, the agency is sometimes used as a tool to circumvent the stated wishes of an elderly person. For example, a person seeking to exploit an elderly person may do so by simply filing charges with Adult Protective Services. While the application is pending, the exploiting party seeks temporary guardianship of the elderly person, thereby allowing them access to the elderly person’s estate. To adequately protect elderly adults, proposed wards should always be afforded their due process rights. These rights allow elderly adults to defend themselves against bad faith guardianship proceedings. Temporary and even permanent guardianship should not be instituted based merely on one-sided affidavits submitted by the applicant. Secondly, guardianship should only be implemented when less intrusive means are unavailable. Prior implementation of powers of attorney may allow the named person to have the authority to manage the financial affairs of an incapacitated ward without a grant of authority from a Texas court. Specifically, prior declarations of who should serve as the guardian of the person often simplify, if not eliminate, the need for extensive guardianship proceedings. Finally, civil and criminal sanctions should be widely available and exercised against persons who institute guardianship or Adult Protective Services’ proceedings in bad faith. Sanctions can deter the vultures that target the elderly and disabled’s finances.

Publisher

St. Mary's University School of Law

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